The Issue This proceeding concerns Clarence E. Middlebrook's application #2-069- 0785AUSMV for a consumptive use permit for his project at Wekiva Falls Resort. Staff of the St. Johns River Water Management District have recommended approval of the application with certain specific limiting conditions. Petitioner, Middlebrooks, contends that the limitations placed on the approval are inappropriate and are so onerous as to preclude the continued use of his facility for public bathing. Petitioner, STS, claims that the present recreational use is not a reasonable beneficial use, interferes with existing legal users of water and is not in the public interest. STS urges limitations more restrictive than those proposed by the district staff. The basic issue for resolution, therefore, is what conditions should be placed on an approval of Middlebrook's application relating to recreational use. Approval of his application relating to an existing household consumptive use permit is not at issue. The parties have stipulated that STS has standing as a petitioner in this proceeding. In addition, in their prehearing statement filed on August 28, 1989, the parties have stipulated that the 14-inch and 28-inch standpipes on the Wekiva Falls Resort are governed by and subject to the provisions of Chapter 373, F.S., and Chapter 40C-2, F.A.C. and are legally considered to be wells for purposes of this proceeding.
Findings Of Fact In their Prehearing Stipulation filed on August 28, 1989, the parties have agreed: Middlebrooks is a private individual who co- owns, along with his wife, and does business as the Wekiva Falls Resort in Lake County, Florida. STS is the owner of approximately 1,842 acres of land contiguous to the southern and western boundary of the Wekiva Falls Resort. The District, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373-219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. On September 4, 1985, Petitioner submitted to Respondent a CUP application No. 2-069-0785AUS to withdraw a maximum of .123 million gallons per day (MGD), i.e. 31.7 million gallons per year (MGY) of water for household type use from two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. An administrative hearing was held regarding that application on November 6 and 7, 1986, and a final order was issued on May 14, 1987. The final order was appealed to the Fifth District Court of Appeal which issued its opinion on July 7, 1988 (529 So.2d 1167). Permit No. 2-069-0785AUS was issued by the District as result of these proceedings. Middlebrooks returned the permit by mail to the District. On September 13, 1988, Middlebrooks submitted to Respondent a CUP application No. 2-069-0785AUS to request approval of a maximum of .123 MGD (31.7 MGY) of water for household type use, which was revised on February 21, 1989, to request a maximum 14.26 MGD of water from the two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Middlebrooks' property in Lake County, Florida. On March 20, 1989, District's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application No. 2-069-0785AUS. Both Middlebrooks' and STS' petitions for administrative hearing were timely filed with the District. In 1968, C.E. Middlebrooks purchased the 140 acre tract on which the wells are located. The property is bounded on the east by the Wekiva River, and on the west by Wekiva River Road. At the time of purchase the property was underdeveloped and overgrown. Shortly after purchase, Middlebrooks inspected the property and found an oval-shaped depression from which water was flowing. Such flow is common in this area along the corridor of the Wekiva basin. These surficial seeps, also called artesian flows, emanate from the surficial and intermediate aquifers. This, and other substantiative findings regarding the characteristics of the property, were made in the recommended order as adopted in the final order in case #86-2101, on May 13, 1987. Still, Petitioner insists that the water was from a natural spring. The only new evidence presented by Petitioner regarding the existence of a "spring" is the testimony of William Shell, who in the late 1930's used to fish with his father in the tributaries and streams off of the Wekiva River. William Shell claims that he and his father took a 10-foot canoe back into the property and he swam and fished in the "spring". Shell was imprecise as to the location of the spring and conceded that the site identified on a map attached to his statement could be as much as five miles off. His testimony as to the existence and location of a spring is unpersuasive in the face of the contrary historical evidence from aerial photographs, soils and geological survey maps, and the well driller's log describing the strata through which the 24-inch well was drilled. In undertaking the development of the property, Middlebrooks dug out the area in which the wells were ultimately drilled, utilizing a dragline to clear out what is now the existing stream bed between the oval-shaped depression and the area which is now the marina (or canoe basin). Extensive dredging was done to develop the marina at a point approximately 200 feet west of the Wekiva River, and additional dredging was done to connect the marina to the Wekiva River in order to have access by boat to the Wekiva River. The stream which now extends from the western boundary to the Wekiva River is called Canoe Creek. In order to maintain the swimming area and the section of Canoe Creek extending eastward from the swimming area to the Wekiva River, it is necessary for Middlebrooks to dredge the area every two to three years. In 1972 as a part of the development activities described above, Middlebrooks hired a well drilling contractor to drill a 14-inch well at a location within the oval-shaped depression. The well was drilled into the Floridan aquifer to a depth of 107 feet, and well casing 14 inches in diameter was driven to a depth of 58 feet. In 1973 Middlebrooks hired a second well drilling contractor to construct a second well within the oval-shaped depression slightly ease of the 14-inch well. The second well was drilled into the Floridan aquifer to a depth of 120 feet, and well casing 24 inches in diameter was driven to a depth of 80 feet. As part of his development activities, Middlebrooks constructed concrete towers around each of the wells and placed diffuser plates and planters on top of each to give the appearance of a waterfall. A concrete wall and sidewalk were constructed around the oval-shaped area. The water flowing from the wells discharges into the oval-shaped swimming area and then flows eastward through Canoe Creek until it reaches the Wekiva River. Middlebrooks' business, known as Wekiva Falls Resort, has a total of 789 campsites located on the northern and southern sides of the property. The swimming area, which extends from the western end of the concrete-enclosed oval- shaped area where the wells are located, to the wooden bridge which crosses Canoe Creek just west of the marina, is licensed by the Florida Department of Health and Rehabilitative Services (HRS) as a public bathing facility. Middlebrooks also offers canoe rentals and paddleboat tours of the Wekiva River, each of which originate from the marina. Middlebrooks' present business operation centers around the water-based recreational opportunities provided by the water emanating from the wells. The facility employs approximately seventeen persons. Groundwater from the Floridan aquifer flows from the two wells under artesian pressure. Middlebrooks testified that he had calculated the discharge from the two wells to be 12.5 mgd and 12.72 mgd, although his records for the period from April 1986 through January 1989 showed average daily flow from the two wells to be 12.98 mgd. The prior final order entered in this matter determined average daily flow to be 12.47 mgd. Because these are artesian wells, flow varies depending on hydrologic conditions. The gate valve for the 24-inch well was frozen in the open position approximately 12 years ago and has since been encased in concrete making it inoperable. There is a diverter valve at water level, which, if opened, would increase the flow volume from the well, but which has no control over the amount of water flowing through the top of the well. As the well is presently structured, water essentially free flows from the well; Middlebrooks can control flow from the 24-inch well only through manual insertion of a poppet valve which must be first hoisted to the top of the well with a crane and then mechanically inserted into the top of the well. The only time this device is used is when Middlebrooks shuts down the well in order to do dredging or other maintenance activities. Early in 1989, the concrete tower encasing the 14- inch well fell over and had to be removed from the swimming area. The well casing was cut off at pool level, removing the gate valve on it. Although flow increased from the 14- inch well as a result of shortening the length of the casing above ground, Middlebrooks mechanically inserted a poppet valve into the top of the remaining casing in order to restrict flow. Middlebrooks contends that, with the restrictor device which is inserted in the 14-inch well, flow is essentially the same as it was before the casing was cut down and the valve removed. In 1973, shortly after the 24-inch well was constructed, USGS did an analysis of the water coming from the well to determine chloride concentrations. Chloride concentrations were measured at that time to be 230 parts per million (ppm). Chloride concentration is a measure of salt content in the water. The benchmark figure for chloride concentration in water as determined by the United States Environmental Protection Agency (EPA) is 250 pp. Water which exceeds 250 ppm in chloride is nonpotable. At the time these wells were drilled, the water was potable. At the base of the Floridan aquifer in the area in which Middlebrooks' property is located is a layer of seawater, extremely high in chloride concentrations, which became trapped when the ocean water which once covered Florida receded and dry land emerged. This water is called relic sea water and is necessarily very old water. Significant discharges through a well in this region can cause the interface between the fresh water in the Floridan aquifer and the relic sea water to move upward toward the cone of influence of the well and break. This is followed by turbulent mixing of relic sea water and fresh water and results in elevated chloride concentrations in the water discharged from the well. This water is sometimes referred to as connate water. Subsequent tests of the chloride concentrations in Middlebrooks' well have been done, both as part of a regional study done by the district and in preparation for this litigation. These test results show significant changes in the chloride concentrations in the water flowing from Middlebrooks' wells. Samples taken by the district in March and October 1986 showed concentrations of 312 ppm in the 14-inch well and 296 ppm for the 24-inch well for March, and 300 ppm for each of the wells in October. The 14-inch well was sampled again by the district in March and April 1989 and showed levels of 335 ppm and 296 ppm respectively, and an April 1989 sample from the 24-inch well showed 317 ppm. Samples taken by Jammal and Associates on August 5, 1989, showed 280 ppm for the 14-inch well and 290 ppm for the 24-inch well. Averaged, these results show concentrations over the 1986-89 period of 304 ppm for the 14-inch well and 300 ppm for the 24-inch well. The changes observed from the 1973 test and the 1986- 89 tests cannot be attributed to seasonal variations. The only samples taken since 1974 from the wells which do not show significant changes in the chloride concentrations are samples which were collected by Middlebrooks himself. The validity of these results is less credible than the results outlined in the previous paragraph, given the expert testimony supporting the former results. Further, the results shown from the samples collected by Middlebrooks are questionable in light of the elevated levels of minerals (including chlorides) which were noted in the analysis of waters taken from Canoe Creek, through which the water coming from the wells flows to the Wekiva River. The water flowing from Canoe Creek is 17 times higher in chlorides than water in the Wekiva River. Chloride levels in the swimming pool area were measured by Dr. Harper at almost 300 ppm. Even Dr. Roessler, an expert called by Middlebrooks noted high levels of mineralization in the water flowing through Canoe Creek to the Wekiva River from the wells and agreed that reductions in flow from the wells would result in reduced chloride concentrations within Canoe Creek. The importance of the significant increase in chloride concentrations in the water flowing from Middlebrooks' wells, as noted, is that the groundwater coming from those wells in no longer potable. Continued discharge from the wells at the current free flow level will aggravate the problem of increasing chloride levels in those wells and in the immediate vicinity of those wells. If no action is taken to address the upward movement of the saltwater-freshwater interface, there is a potential for transmittance of connate water to wells of adjacent landowners. Reduction in the flows from Middlebrooks' wells would stabilize the saltwater-freshwater interface beneath his wells. This could result in lower chloride concentrations in the water flowing from Middlebrooks' wells, and at the very least, there would be no further aggravation of the problem. Section 10D-5.120, Florida Administrative Code, governs public bathing facilities such as Middlebrooks', and essentially has two water quality requirements. The first is a flow-through requirement which specifies that there must be minimum flow of water through the facility of 500 gallons per bather per 24 hours. The second requirement is that total coliforms must not exceed 1000 most probable number of coliform organisms (mpn) per 100 milliliters. Although Middlebrooks' HRS license for his public bathing facility does not limit the number of bathers who may use his facility, there is an existing injunction obtained against Middlebrooks by Lake County, Florida, which allows a maximum of 2500 persons on the entire premises per day. Middlebrooks has made no effort in the past, nor does he presently make any effort to determine how many patrons actually use the bathing facilities on a daily basis. As the prior final order noted "for all the record shows, he may have never had that many (the maximum) since his permit was issued". The only evidence of actual usage of the bathing facilities showed a maximum of 290 persons in the pool area on a summer weekend. Regardless of how few, if any, persons utilize the bathing area under present conditions, the same amount of water flows from the wells daily. The stream which extends from the western end of the swimming area to Wekiva River Road and then off site receives drainage during wet weather conditions from offsite areas. All of Canoe Creek including the portion west of the swimming area is essentially a catch basin for surface water drainage from Middlebrooks' property. Surface water drainage enters Canoe Creek through overland flow, through swales conveying stormwater to it, and through an assortment of stormwater drainpipes which drain parts of Middlebrooks' property as well as off-site areas. The water entering Canoe Creek from this surface water drainage is extremely high in total coliforms. There are no significant stormwater treatment facilities on the site. A concrete weir with a spillway separates the swimming area from Canoe Creek west of the swimming area. The water in Canoe Creek immediately west of the swimming area is extremely high in total coliforms. A sump pump has been installed just west of the weir which, under normal weather conditions, is capable of pumping enough of the water into a roadside swale, thereby diverting it around the swimming area, to prevent this high coliform water from overtopping the weir and flowing into the swimming area. However, under rainfall conditions, the pump will not prevent this drainage from spilling over the weir and Middlebrooks does not run the pump continuously. Water has also been observed spilling over the weir into the swimming area under normal conditions. The higher coliform water which is pumped into the roadside swale is reintroduced into the swimming area through a culvert pipe midway between the oval area, where the wells are located, and the marina. There is also an apparent influx of total coliforms through surficial seepage and other sources internal to Middlebrooks' property. One of these sources of coliforms could be the wastewater treatment plant operated by Middlebrooks on the property. Other than the part-time operation of the sump pump, which was installed for aesthetic reasons rather than water quality reasons, Middlebrooks has done nothing to control the numerous sources of total coliforms to his swimming area, nor does he propose any modifications to accomplish this in his application. Instead he has relied and proposes to continue to rely on the 12.5 mgd flow of water from his wells to dilute the total coliforms entering the swimming area in order to meet the HRS standards for water quality. Middlebrooks dismisses any alterations to the site to address these total coliforms sources as "impractical". To the contrary, it is practical, technologically feasible, and economically feasible to control the introduction of coliform to the swimming area and meet HRS standards by preventing introduction of coliforms rather than relying on massive amounts of groundwater to meet the standards through dilution. One means would be to operate a sump pump around the clock instead of only on a part-time bases. Installation of additional toilet facilities for campers would reduce the use of Canoe Creek and its vicinity as a toilet. More importantly, treatment facilities such as retention and detention areas to treat stormwater runoff before it enters Canoe Creek, as well as diverting the water around the oval part of the swimming area, would enable Middlebrooks to comply with HRS total coliforms standard without the necessity of utilizing 12.5 mgd of groundwater. Reducing the flow of water from Middlebrooks' wells in accordance with the recommendations contained in the District's staff report would not cause blowouts or any other adverse geological consequences on his property or elsewhere. As indicated earlier, this region is characterized by artesian flow, and there is the potential for increased discharges from springs or other discharge points within the vicinity of Middlebrooks' property if flow is reduced from his wells. Overall, the area should return to a more naturally balanced system such as existed before the wells were constructed. The flow which discharges presently through the wells produces enough water to supply the domestic needs of 90,000 people. Reduction in the discharge from the wells would make additional water available for use for other beneficial purposes within the area as the water which now discharges from Middlebrooks' wells could be withdrawn at other locations within the vicinity of Middlebrooks' property. Through properly spacing wells and limiting their depth, (skimming well fields) these other uses of water could occur without aggravating the existing problem with chloride concentrations. Middlebrooks and one of his employees described water upwelling within the swimming area on one occasion when flow was stopped from the wells. While this would not be unusual in an area characterized by artesian flow, it may also be an indication that well construction problems exist with either or both of the wells. Having the wells geophysically logged as is required in the permit conditions proposed by district staff, would reveal, among other things, whether the well is properly grouted and sealed. If the wells are not properly sealed contaminated connate water could be allowed to move upward and interchange with other water-bearing zones, resulting in chloride contamination in those zones as well. The aquatic and wetland habitat associated with Canoe Creek can be divided into three distinct segments: (1) the intermittent stream extending westward from the weir and spillway to Wekiva River Road (hereinafter "the intermittent stream"); (2) the swimming area which begins at the weir and extends to the bridge just west of the marina (hereinafter "the swimming area"); and (3) the marina which encompasses the dredged boat basin and that portion of Canoe Creek extending eastward from the marina. These three segments have varying importance as aquatic or wetland habitats and can be separately characterized according to the impacts which would be felt from a reduction in the flow of water from the wells as recommended by the district staff report. The intermittent stream is characterized by slow flowing or stagnant water. There are species indicative of a wetland system associated with the channel here, although the banks of the stream have been mowed and maintained. Aquatic and wetland dependent species do utilize this part of the stream; however, they are in less abundance than in other parts of Canoe Creek. Because the hydrology of this portion of the stream is not affected by the flow from the wells, there would be no impact on this area if flow from the wells is reduced. The swimming area, which consists entirely of hard sand, is devoid of biological activity as a result of the regular mechanical maintenance performed on it by Middlebrooks, leaving no vegetation in the channel. Although there are aquatic species which utilize primarily the oval-shaped part of the swimming area, many of these are exotic species. In any event, there would continue to be a flow of water to maintain that environment. The southern bank of Canoe Creek in the swimming area down to the water's edge has been cleared, sodded, and is maintained as a lawn. There are no wetland plant species in this area. There are trees along the northern bank of the stream in this area, and it is less disturbed than the southern bank; however, the understory has been removed. Overall, there would be minimal impact to the aquatic and wetland species within the creek itself, and no impact to plant species along the banks of the creek if flows are reduced in accordance with the District staff' s recommendation. The marina area and the creek eastward of it provide the most abundant and productive part of the creek for aquatic species. This portion of the creek is at the same grade as the Wekiva River and therefore is in equilibrium with the river. Water levels are controlled by the pulse of the river, rather than the flow from the wells, and will be unchanged by reduction of flow from the wells. Although there would be a reduction in the amount of water moving through this area, there would be little, if any, impact to the functions of this portion of the creek as an aquatic habitat if the reduction in flow recommended in the district staff report were accomplished. Viewed as a whole, Canoe Creek, because of the wells and the alterations made to the site by Middlebrooks, is an altered natural environment with an artificially created and maintained ecosystem. The primary natural feature associated with this property is the riverine forested wetlands which extend approximately 200 feet inland from the Wekiva River. This area lies within the floodplain of the river and is influenced by the rise and fall of the river. These wetlands would not be affected at all by reduction in flows from the wells. Middlebrooks has contended that the flow from his wells provides a benefit to the Wekiva River by improving water quality in the river. Extensive water quality data showing the quality of discharges from Canoe Creek, versus ambient conditions in the river both upstream and downstream of Canoe Creek, do not support this assertion. The flow from Canoe Creek does not reduce temperatures in the river nor does it provide a thermal refuge for fish. Dissolved oxygen levels in the water flowing out of Canoe Creek are virtually the same as in the Wekiva River upstream of the creek. Chloride concentrations in the Canoe Creek discharge are 17 times higher than in the river itself. Total coliforms are higher in the Canoe Creek discharge than in the river itself. Although there is a slight reduction in nutrients as a result of the Canoe Creek flow, this slight reduction has no impact in a fast moving system such as the Wekiva River. Significantly, the flow from Canoe Creek violates State Water Quality Standards for specific conductivity (an indicator of the level of mineralization.) The probable source of this violation is the mineralized water flowing from Middlebrooks' wells. Reduction in flows from the wells would not degrade water quality in the Wekiva River and would likely eliminate the source of a specific conductance water quality violation. The 12.5 million gallons per day of groundwater which flows through Middlebrooks' wells (as distinguished from the 31.7 million gallons per year that is used for household type use) is primarily used by him to enable him to charge visitors to swim in the water. Any other uses of the water are secondary. The absolute deadline for making application to the District for continuation of existing uses and thereby to be evaluated as an existing legal user was September 11, 1985. The first application filed by Middlebrooks for an allocation of water for a use other than household type use was filed on September 13, 1988, exactly three years after the deadline for the use to be classified as and evaluated as an existing use. No exemption was sought or claimed for the water supplying the swimming area prior to the September 11, 1985, deadline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered by the District Board approving the issuance of a consumptive use permit to C.E. Middlebrooks for the amounts and under the terms and conditions established in the District's Technical Staff Report dated March 24, 1989. DONE AND RECOMMENDED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by the Petitioners. FACTS PROPOSED BY PETITIONER MIDDLEBROOKS 1-8 Adopted in paragraph 1. 9-12 The existence of a prior "springs" was not proven by a preponderance of evidence and these findings are rejected, with the exception of the date of purchase, which is adopted in paragraph 2. 13 Rejected as unnecessary. 14-18 See 9-12, above. 19-36 Rejected as unnecessary or subordinate to the facts found. 37 Adopted in paragraph 10. 38-43 Rejected as unnecessary or subordinate. 44 Adopted in paragraph 10. 45-46 Adopted in substance in paragraph 24. 47, 48 Adopted in part in paragraph 9. The extent of use was not established. Rejected, except as to the existence of the injunction, which is adopted in paragraph 20. This injunction was apparently the result of neighbors' concern over a proposed rock concert to be held at the site. Adopted in paragraph 19. 51-53 Rejected as unnecessary or subordinate. 54, 55 Rejected as unsupported by the weight of evidence. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as unsupported by the evidence. 59-63 Rejected as unnecessary or subordinate. 64-79 Rejected as contrary to the evidence. 80-81 Rejected as unnecessary or subordinate. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 85-90 Rejected as unnecessary or subordinate. Adopted in substance in paragraph 9. Rejected as contrary to the evidence (the "efficiency" of the bathing area). Adopted in part in paragraph 20, otherwise rejected as unnecessary. 94-99 Rejected as cumulative. These same facts are addressed above. 100-101 Adopted in part in paragraph 22. 102-168 Rejected as cumulative. These same facts are addressed above. 109-113 Rejected as contrary to the evidence. 114 Rejected as cumulative 115-118 Rejected as contrary to the evidence. Rejected as unnecessary and irrelevant. Rejected as contrary to the evidence. Rejected as irrelevant. FACTS PROPOSED BY PETITIONER STS Adopted in substance in paragraphs 1 and 5. Adopted in substance in paragraphs 3 and 4. Adopted in paragraphs 6 and 7. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in substance in paragraph 5. Addressed in the Preliminary Statement. Adopted in paragraph 11, conclusions of law. Adopted in paragraph 33. Adopted in substance in paragraphs 24 and 25. Adopted in paragraphs 19 and 25. Adopted in substance in paragraphs 22 and 23. Adopted in paragraph 33. Adopted in substance in paragraph 17. Adopted in substance in paragraph 15. Adopted in substance in paragraph 16. Rejected as contrary to the evidence. 19-22 Rejected as unnecessary or subordinate. COPIES FURNISHED: Robert A. Routa, Esquire P.O. Box 6506 Tallahassee, FL 32314-6506 Frank Matthews, Esquire Kathleen Blizzard, Esquire P.O. Box 6526 Tallahassee, FL 32314-6526 Wayne E. Flowers, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director P.O. Box 1429 Palatka, FL 32178-1429 =================================================================
The Issue The issues for determination in this proceeding, are as follows: Whether St. Johns' Rules 40C-2.301(4)(d), and (i), F.A.C. [adopted, as well, in the Applicant's Handbook as Sections 10.3(D),(H) and (I)] are invalid exercises of delegated legislative authority, because of vagueness and arbitrariness. because, to the extent water quality is regulated, St. Johns has exceeded its statutory authority. Whether St. Johns utilizes an unwritten, and, therefore, invalid rule for determining allowable parts per million of phosphorus and nitrogen. Whether St. Johns' policy of reliance on Department of Environmental Regulation (DER) Rule Chapter 17-3, F.A.C., constitutes an invalid rule. MATERIAL ADMISSIONS AND STIPULATIONS In Stipulations filed at or before the hearings on November 22, 1988 and February 27, 1989, the parties have agreed as follows: Zellwood Drainage and Water Control District and the individual Petitioners in this case have standing to bring this Section 120.56, F.S., rule challenge. Zellwood filed a timely consumptive use permit application with St. Johns, as an existing use. St. Johns classified the application as one for an existing use. The review of the application occurred in December 1985. The sole basis of St. Johns' recommended denial is Zellwood's alleged non-compliance with Rules 40C-2.301(4)(d), (h), and (i), F.A.C., and those same provisions found in Section 10.3(D), (H) and (I) of the Applicant's Handbook. The factual basis of St. Johns' denial of Zellwood's consumptive use permit application is the quality of the water discharged into Lake Apopka and the effect the discharge has on the lake. In its admissions filed at the February 27, 1989 hearing, St. Johns admits that unless an applicant has an operation permit issued by DER, St. Johns uses the State Water Quality standards in Chapter 17-3, F.A.C. (DER's rule) in deciding whether a use of water causes serious harm to the water quality of source or receiving waters, pursuant to Rules 40C-2.301(4)(h) and (i), F.A.C., and whether a use of water has reduced environmental or economic harm to an acceptable amount pursuant to Rule 40C-2.301(4)(d), F.A.C.
Findings Of Fact Petitioner, Zellwood Drainage and Water Control District was created as a special district in Orange County, Florida, by act of the Legislature, Chapter 20714, Laws of Florida, in 1942. The district is located south and west of the town of Zellwood, along the northeast shore of Lake Apopka, and comprises approximately 8700 acres. The district is governed by a board of governors; William Rex Clonts, Jr. is currently Chairman. Plainly stated, the purpose of the district is to make its lands suitable for farming by maintaining pumps, canals, a dike, roads and other improvements. The land within the district is lower than the level of the lake and surrounding land. Without drainage, the land could not be farmed. The individual petitioners are farmers owning land and farms within the district. There are approximately twelve farms, primarily family-owned, growing broccoli, carrots, celery, leaf lettuce, radishes, greens, sweet corn and sod. The farms within the district, utilizing the improvements of the district, pump water from Lake Apopka for nematode control and for irrigation in times of dry seasons. Except when the water is allowed to evaporate off the fields, water is then discharged back into Lake Apopka. Water is also discharged for flood control. When water is used as described above, it moves across the lands and it tends to pick up nutrients depending on the composition of the soil and the concentrations of the soil in the water. Almost every consumptive use of water has an associated discharge. From a regulatory standpoint, water quality and water quantity are intertwined. Both withdrawal from and discharge to a waterbody can degrade the water quality of that body. The only consumptive use permit applications denied by St. Johns on the basis of the quality of the discharge water are Zellwood's, Duda Farms', and other neighbors of Zellwood near Lake Apopka. However, in cases other than these St. Johns has recognized water quality problems and has issued water use permits with conditions which would help remedy the problem. When reviewing a consumptive use permit application such as Zellwood's, St. Johns applies, among others, these relevant provisions of its Rule 40C- 2.301, F.A.C.: 40C-2.301 Conditions for Issuance of Permits. To obtain a consumptive use permit for a use existing on the effective date of implementation, the applicant shall apply for a permit under the provisions of Section 373.226, Florida Statutes, and Rule 40C- 2.04(2), Florida Administrative Code, and shall establish that it is a reasonable beneficial use and is allowable under the common law of Florida. * * * The following criteria must be met in order for a use to be considered reasonably beneficial: The use must be such quantity as is necessary for economic and efficient utilization. The use must be for a purpose that is both reasonable and consistent with the public interest. The source of the water must be capable of producing the requested amounts of water. The environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount. To the degree which is financially environmentally, and socially practicable, available water conservation and reuse measures shall be used or proposed for use. The consumptive use should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems. The consumptive use should not cause or contribute to flood damage. The water quality of the source of the water should not be seriously harmed by the consumptive use. The water quality of the receiving body of water should not be seriously harmed by the consumptive use. A valid permit issued pursuant to Rule 17-4.240 or Rule 17- 4.260, Florida Administrative Code, shall establish a presumption that this criterion has been met. (emphasis added) Rules 17-4.240 and 17-4.260, F.A.C. are DER rules relating to operation permits for water pollution sources, and permits for sewage works, respectively. Zellwood contends that the standards in 40C-2.301(4)(d), (h) and (i), F.A.C., above, have no scientific meaning, do not put the applicant on notice as to what discharge would be permitted, and leave too much discretion to the agency. Sanford "Sandy" Young is an environmental consultant who testified on behalf of Zellwood. He specializes in limnology, the study of physical, chemical and biological aspects of fresh water. Young claims that the language of the rules is too vague to allow him to advise a client. He contrasts these rules with the DER water quality standards in Chapter 17-3, F.A.C., adopted by the Environmental Regulation Commission, which do include specific numbers where possible. St. John's department of resource management is responsible for reviewing and processing permit applications, including applications for consumptive use permits. In addition to using its own staff of engineers, hydrologists, and environmental specialists, the Department consults with its sister department of water resources, the district's program and research department, for additional technical expertise. On matters related to water quality, St. Johns' staff also consults with DER staff. St. Johns uses the provisions of DER rule Chapter 17-3 to measure the "serious harm" referenced in St. Johns' rules. Rule 17-3.121(19), F.A.C., sets the standard for nutrients in surface waters classified as Class III, such as Lake Apopka, as follows: (19) Nutrients - In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna. The nutrient standard provided in Rule 17-3.121, F.A.C., above, requires a site specific determination of the volume and concentrations of the nutrients that are discharged. The point at which an imbalance would be created is different from different bodies of water. Nutrients behave in a very site specific fashion, and in order to derive a scientific estimate of nutrient criteria for a specific body of water, the characteristics of that body have to be taken into account. It would be impossible to develop a numerical standard which would apply to all. The nutrient standard in Rule 17C-3.121, F.A.C. is applied, therefore, on a case-by-case basis. In permit application review, when there is not sufficient time to do actual field samplings and to run an exhaustive model of nutrient loading, the staff relies on available data, available literature and what is provided in the application itself, to make a recommendation to the district board regarding approval or denial. The staff's recommendation as to Zellwood was based on published literature on Lake Apopka and its existing water quality conditions and on available data from consultants on the quality and quantity of discharge and quantity from the Zellwood farms. As a rule of thumb, in this case, and not as an official district policy, the staff felt that .1 milligram per liter phosphorus, and 2 milligrams per liter nitrogen, would be an acceptable working level for discharge into Lake Apopka. That level itself would also depend on the amount of water being discharged. The .1 milligram and 2 milligrams level assumes a discharge of 20 billion gallons per year. The staff, in establishing such levels in consumptive use permits, strives to establish a discharge that will not contribute to the water quality of the receiving body staying below Class III standards (when that Class has been designated by DER). St. Johns has not adopted the nutrient level described above as a rule, but neither does it apply the level generally to other permit applications. Without a given volume of water, without knowledge of the ecological state of the receiving body, it is impossible to determine whether a given nutrient concentration, such as the parts per liter of nitrogen and phosphorus described above, would cause an imbalance of natural flora and fauna in the receiving body. St. Johns has adopted Rules 40C-2.301(4)(d), (h) and (i), F.A.C., in accordance with the rulemaking provisions of Section 120.54, F.S. In addition, Chapter 40C-2, F.A.C., has been reviewed by DER and accepted without objection as consistent with Chapter 17-40, F.A.C., the state water policy, and other applicable statutory standards.
