The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The West Coast Regional Water Supply Authority (Authority) is authorized and obligated to acquire water and water rights, store and transport water, and deliver and sell water to its member governments for public use. The Authority exists pursuant to Sections 163.01 and 373.1962, Florida Statutes, and an interlocal agreement executed October 25, 1974, by the "member governments" which include the Cities of St. Petersburg and Tampa, and Pinellas, Pasco and Hillsborough Counties. The City of St. Petersburg is a member government of the Authority. St. Petersburg owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pinellas County (Pinellas) is a member government of the Authority. Under conditions experienced during the rupture of defective pipelines, Pinellas' water utility received water from the facilities at issue in this proceeding. The defective pipeline is still in use and Pinellas may again require water from these wellfields if another rupture occurs. The Southwest Florida Water Management District (District) is charged with the regulation of consumptive water use in west-central Florida, including all areas relevant to this proceeding. The District operates pursuant to the authority of Section 373.069, Florida Statutes. Hillsborough County (Hillsborough) is a member government of the Authority. Hillsborough owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pasco County is a member government of the Authority but does not receive water from the facilities at issue in this proceeding. The South Pasco wellfield is located within the boundaries of Pasco County. All parties have standing to participate in this proceeding. THE WELLFIELDS The South Pasco wellfield is located in southern Pasco County and is owned and operated by St. Petersburg. The South Pasco wellfield has been operating since 1973. Until 1977, the South Pasco wellfield produced approximately 15 million gallons per day (mgd) of water. The South Pasco wellfield was first permitted by the District in 1978. The permit was renewed in 1982. The current permit allows an annual average daily withdrawal rate of 16.9 mgd and a maximum daily rate of 24 mgd. The permit also requires that withdrawals from this field be balanced with the withdrawal levels of the Section 21 and Cosme- Odessa wellfields. The South Pasco wellfield is currently providing approximately 12 mgd to the Authority. St. Petersburg applied to renew the South Pasco permit on August 18, 1992. The application to renew the South Pasco wellfield was deemed complete by the District on April 28, 1994. No increase in the South Pasco wellfield maximum water withdrawal rate is being sought by the Petitioners. The Section 21 wellfield is located in northwest Hillsborough County. The Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Section 21 field has been operating since 1963. From the initiation of pumping through 1970, withdrawals varied between 10 and 18 mgd. The Section 21 wellfield was initially permitted by the District in 1976. The 1976 permit authorized the withdrawal of an annual average rate of 18 mgd and a maximum daily withdrawal rate of 22 mgd. The Section 21 wellfield currently operates under a permit issued in 1984. The permit effectively authorizes withdrawal of an annual average daily rate of 12 mgd and a maximum daily withdrawal rate of 22 mgd. The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Section 21 wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Section 21 permit on August 18, 1992. The applications to renew the Section 21 permit were deemed complete by the District on April 28, 1994. No increase in the Section 21 wellfield maximum water withdrawal rate is sought by the Petitioners. The Cosme-Odessa (Cosme) wellfield is located in northwest Hillsborough County, and like the Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Cosme wellfield has been operating since the early 1930's. At various times withdrawal rates at the Cosme field have neared 20 mgd. The Cosme wellfield was initially permitted by the District in 1976. The 1976 permit authorized the annual average daily withdrawal of 19 mgd and a maximum daily withdrawal of 22 mgd. The Cosme wellfield currently operates under a permit issued in 1984. The current permit authorizes an annual average daily withdrawal of up to 12 mgd and a maximum daily withdrawal of 22 mgd The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Cosme wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Cosme permit on August 18, 1992. The applications to renew the Cosme permit were deemed complete by the District on April 28, 1994. No increase in the Cosme wellfield maximum water withdrawal rate is sought by the Petitioners. The Northwest Regional Hillsborough wellfield (NWRHWF) is comprised of a vaguely linear series of wells located in northwest Hillsborough County and owned by the Authority. There is no actual Northwest Hillsborough "wellfield." The NWRHWF was initially permitted in 1984 for 8.8 mgd annual daily average and 18.4 maximum daily rate. The NWRHWF began production in the mid-1980's at a rate of approximately 8 mgd. The field currently produces close to 8.8 mgd, the maximum permitted withdrawal. The Authority applied to renew the NWHRWF permit May 19, 1994. Also included within the "wellfield" by the current permit application are two wells owned by Hillsborough County and operated by the Authority. The two wells are located at the Manors at Crystal Lake subdivision. The application for the Manors permit renewal seeks to combine the existing Manors permit with the NWRHWF and to allow the Authority to accept responsibility for the collection of wells. The Manors at Crystal Lake wellfield provide about .2 mgd to a residential subdivision. They are not in the vicinity of the NWRHWF. There are no common withdrawal or distribution facilities shared by the Manors at Crystal Lake wells and the NWHRWF. Hillsborough apparently intended to shed responsibility for the Manors wells and did not intend to be a co-permittee for either the Manors wells or the NWHRWF. Hillsborough specifically notified the District that the Authority would assume responsibility for the permitting of the Manors wells and that Hillsborough was withdrawing from the application process. Based on the Hillsborough representation, the District combined the Manors and the NWHRWF applications for processing and review. The 9 mgd withdrawal rate sought by the Authority in the renewal permit application is the sum of the existing permitted withdrawals at the combined wellfields and does not constitute an increase in existing withdrawal rates. The combined application was deemed complete by the District on June 21, 1994. The permit renewal applications at issue in this proceeding were timely filed in accordance with applicable deadlines. The evidence establishes that it takes from seven to ten years to bring new water supply facilities from the planning stage to operation. Otherwise stated, if the wellfields in these cases were to be closed, it would take up to ten years to bring new wellfields online. Public water supply permits issued by the District are typically valid for a period of ten years. On the subject permit applications, the Petitioners seek to have 20 year permits issued. There is no evidence supporting an extension of the District's standard ten year permit term. PREVIOUS WATER USE PERMITTING Prior to 1972, water withdrawals from the subject wellfields were unregulated. Beginning in 1972, the District established "regulatory levels" for the Cosme, Section 21 and South Pasco wellfields. Regulatory levels are measurements of the water pressure in the Floridan aquifer. As the pressure falls below the regulatory minimum, water withdrawals are restricted. Additional requirements were intended to balance the withdrawals from the three wellfields, an attempt to distribute the effects of large quantity water withdrawals on the water resources of the area. Although in the current permit application, the Petitioners originally sought to have regulatory levels established by the District removed from the renewal permits, the Petitioners have since abandoned the position and now suggest that the existing permits should be renewed with applicable regulatory levels intact. Beginning in 1975, the District initiated a permitting program. The Petitioners sought permits for the South Pasco, Section 21, and Cosme wellfields. Prior to 1989, District rules provided for the award of exemptions to permittees from meeting certain environmental criteria where such exemptions were "consistent with the public interest." The effect of the "public interest" exemptions was to permit withdrawal of water at rates which would otherwise have been prohibited and to allow water withdrawals to lower the Floridan aquifer. In 1975, the District issued the Section 21 and Cosme permits, and granted the "public interest" exemptions to the permittees, allowing water withdrawals which would otherwise not have met environmental permitting requirements. The permits were valid through the end of 1980. The initial South Pasco permit, issued in 1978, anticipated that withdrawals from the wellfield would be reduced when water from the Cypress Creek wellfield became available. The permit was valid through the end of 1980. In 1982, the South Pasco wellfield received a permit valid to September 1992. In 1984, the Section 21 and Cosme wellfields received permits valid to September 1992. The NWHRWF received its initial permit valid to September 1987. In all four permits, the District granted "public interest" exemptions to the permittees from meeting certain environmental criteria. The effect of the exemptions was to allow the water withdrawals at rates which would otherwise have been prohibited and which lowered the level of the Floridan aquifer. The District asserts that the Authority was advised during the early 1980's permitting process that alternative water resources needed to be developed to provide for future demand and allow for rotational capacity in the subject wellfields. The District asserts that little progress has been made in addressing these issues. To the extent the Authority was directed in prior and somewhat vague permit conditions to consider alternative sources, the evidence establishes that the Authority has complied with the minimal directives provided by the District. NORTHERN TAMPA BAY AREA HYDROGEOLOGY In the mid 1980's, the District declared the area of Northern Tampa Bay , including the subject wellfields, to be an "area of special concern" regarding the condition of local water resources. In 1987, the District undertook a water resource assessment project to examine local water resources. In 1989, based on preliminary information from the project (the "WRAP"), the District identified the subject wellfield area as the "Northern Tampa Bay Water Use Caution Area" in recognition of environmental stress identified by the District. After rule changes in 1989, the District eliminated the rule provision which provided for the granting of exemptions to environmental requirements. The amended rules required a permittee to assume responsibility for both on-site and off-site impacts related to the water withdrawal. The District also began to consider the "cumulative" impacts of withdrawals. At about the same time as the 1989 rule changes became effective, the District adopted the "Basis of Review" which provides for procedures and additional information related to water use permit review. In 1992, the WRAP study area was expanded and became identified as the "Northern Tampa Bay Water Resource Assessment Project" (NTBWRAP). The NTBWRAP is the District's most recent attempt at determining the condition of the water resources in the area of the subject wellfields. The geology of the wellfields and of most of the surrounding area is essentially a three-layer structure. The top layer is the surficial aquifer. The bottom layer is the Floridan aquifer. Separating the two is a "confining" layer. An "aquifer" is a geological formation in which water is stored and from which water may be obtained via the drilling of wells. The movement of water through geological materials is measured as "hydraulic conductivity." The surficial aquifer is primarily made of sandy, fine- grained material. The level of water found in the surficial aquifer is what is commonly described as the "water table." Generally, the level of water found in wetlands and lakes is a rough approximation of the surficial aquifer water table. The Floridan aquifer is a porous limestone formation with visible and sometimes sizable cavities and channels. The water of the Floridan aquifer permeates the limestone and flows within the limestone cavities and channels. The cavities and channels in the limestone are referred to as "karst" features, as are sinkholes, which result from the collapse of cavities in the limestone. The subject wellfields withdraw water directly from the Floridan aquifer. The confining layer between the aquifers is primarily made of clay. The impermeability and thickness of the clay deters the movement of water between the surficial and the Florida aquifers. The potential for movement of water between the aquifers is known as "leakage." The thickness of the confining layer in the area of the subject wellfields varies considerably. In some areas, there may be an essentially intact confinement and little or no leakage. In other areas, the confining layer is thin or nonexistent, and substantial leakage occurs. For example, the formations known as "sinkholes" are generally areas of collapsed Floridan aquifer limestone formations where the confining layer can be completely breached, at least until the sinkhole fills with other material and leakage is reduced. The level to which water will rise in a well drilled to the Floridan aquifer is known as the "potentiometric level." The water level identified through multiple Floridan aquifer wells is described as the "potentiometric surface." The potentiometric surface essentially measures the water pressure of the Floridan aquifer and can vary depending on factors including water withdrawals from the aquifer. The difference between the potentiometric level of the Floridan aquifer and the water table level of the surficial aquifer is referred to as "head difference." When the potentiometric surface of the Floridan aquifer is higher than the water table of the surficial aquifer, water can flow through a breached confining layer to the surface and appear as what is commonly called an "artesian well" or "spring." Where the potentiometric surface of the Floridan aquifer is lower than the water table of the surficial aquifer, surficial water can move through a leaky confining layer to the Floridan aquifer in a process known as "recharge." Water within the Floridan aquifer can move horizontally from an area of higher potentiometric surface towards an area of low potentiometric surface, but such movement is very slow and can take many, many years. Almost all of the Floridan aquifer recharge occurs through precipitation in areas where karst features are present and where the level of the surficial water table exceeds the potentiometric surface of the Floridan aquifer, thus permitting the precipitation to defuse into the Floridan system. The evidence establishes that the area of the wellfields at issue in this proceeding is generally characterized as one of a leaky confinement layer with substantial karst features. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of ground penetrating radar tests, measurements at nested well sites, and historical observation. Additional data related to aquifer withdrawal levels and nearby well measurements further support this finding. Ground penetrating radar tests are useful in measuring the existence of karst features below ground and under water bodies. To the extent that such tests have been performed in the area of the South Pasco, Cosme-Odessa, and Section 21 wellfields, the results indicate that karst features are prevalent and indicative of a leaky confining layer between the aquifers. "Nested" wells are paired wells, one into the surficial aquifer and the other into the Floridan, which are located within close proximity to each other. Concurrent measurements of water level fluctuations can indicate a connection between the aquifers. Such measurements within the vicinity of these wellfields indicate the existence of a poor confinement between the aquifers. WELLFIELD IMPACTS ON POTENTIOMETRIC SURFACE The wells at issue in this proceeding withdraw water directly from the Floridan aquifer. The water withdrawals result in a lowering of the potentiometric surface of the Floridan aquifer. The reduction of potentiometric surface by water withdrawal is referred to as "drawdown." The greatest drawdown occurs at the site of the well and becomes reduced with distance, resulting in a "cone-shaped" impact centered around the withdrawal area. The impact is referred to as a "cone of depression" in the water level. Drawdown impact can be influenced by the location of wells, the quantity and speed of withdrawal, precipitation, and the movement of water through the aquifer ("transmissivity") and between the aquifers ("leakage.") The "cone of depression" extends outward from the withdrawal point until the effects of the withdrawal are balanced by surficial recharge and inflow from the Floridan. Drawdown impacts are estimated by the use of groundwater flow models. The models generate contour lines which approximate the extent of drawdown related to specific water withdrawals. A drawdown contour "map" is generated by application of withdrawal projections to the model. The resulting map indicates the anticipated impact of water withdrawals. As mathematical estimates, drawdown models may not accurately measure impacts of water withdrawals on aquifers, however, they provide a useful tool to direct further observation and can be corroborated by appropriate actual measurements. The primary cause of the Floridan aquifer drawdown in the vicinity of the subject wellfields is the withdrawal of water by the Petitioners in accordance with water use permits issued by the District. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of aquifer performance tests and on review of monitoring well hydrographs. Additional support for this finding is provided by the groundwater flow model data analysis offered by the District. According to the District groundflow modeling, the drawdown at the South Pasco wellfield is from nine to twelve feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from three to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Section 21 wellfield is from six to ten feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from two to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Cosme-Odessa wellfield is from four to five feet at the wellfield boundary, from two to three feet at a distance of about a mile or so from the boundary, and from one to two feet at a distance of two and a half miles from the boundary. According to the District groundflow modeling, the drawdown at the NWHRWF is from three to four feet at the linear "wellfield" approximate boundary, from two to three feet at a distance of one mile from the boundary, and from one to two feet at a distance of two miles from the boundary. Floridan aquifer recharge in the vicinity of the subject wellfields occurs by surficial water flow through the porous confining layer. WELLFIELD IMPACTS ON SURFICIAL AQUIFER, LAKES AND WETLANDS The drawdown of the Floridan aquifer results in a lowering of the surficial water table as water leaks through the marginal confining layer and into the Floridan. The lowering of the surficial water table results in a lowering of area lakes and wetlands. The process by which water from the surficial aquifer leaks into the Floridan aquifer is known as "induced recharge." Induced recharge occurs where the head difference between the aquifers is reduced by Floridan aquifer withdrawals to the point at which surficial water will leak down through the confining layer and into the Floridan aquifer system. While other factors including reduced rainfall and increased evapotranspiration can result in lowered lake and wetland water levels, the evidence in this case establishes that the primary cause of lowered lake and wetlands water levels in the vicinity of the subject wellfields is the withdrawal of water at the wellfields resulting in induced recharge from the surficial aquifer to the Floridan aquifer. The evidence further establishes that the withdrawal of Floridan aquifer water in the area of the subject wellfields has resulted in dramatically increased fluctuations in the water levels of area lakes and wetlands. Normal "day-to-day" fluctuations in local lake water levels (called "amplitude") have been greatly increased by the groundwater withdrawals. Historical data, to the extent it exists, indicates that the current lake water in the area of the wellfields fluctuates within wider ranges, and at lower levels, than reflected by prepumping data. This finding is based upon the credited testimony of the Respondents' expert witnesses and on a review of historical hydrological data admitted into the record at hearing. Although the area has experienced an abnormal period of reduced precipitation, the impact of the wellfield withdrawals has exacerbated the water level fluctuations which could otherwise be attributed to a lack of rainfall. Surficial water table reductions related to induced recharge occur over an extended period of time. The quantity of water generally contained in the surficial aquifer tends to obscure the immediate impact of Floridan aquifer withdrawal, and accordingly, aquifer performance tests are generally poor measurements of the impact of Floridan aquifer withdrawals on the surficial aquifer, but review of historical data clearly indicates the impact. The gradual reduction in the surficial aquifer water table has resulted in a corresponding reduction of water levels in lakes and wetlands. Although each lake and wetland has different hydrogeologic features, and some are more impacted by groundwater withdrawal than are others, the evidence clearly establishes that the majority of lakes and wetlands in the area of the subject wellfields are hydrologically connected to the Floridan aquifer via the connection of the surficial aquifer to the Floridan, and that the lowering of the potentiometric surface of the Floridan aquifer has resulted in lowering of the surficial water table and of lake and wetland water levels. About nine percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with lakes. Analysis of data related to lake levels at Lake Rogers on the Cosme wellfield and Starvation Lake on the Section 21 wellfield show substantial average lake level declines clearly related to the groundwater withdrawal occurring in the wellfields. Lake Rogers has declined from an average level in 1930 of 45 feet (prior to the start of withdrawals) to a level of 30 feet in 1995. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. In fact, despite a cumulative rainfall deficit during the early 1960s, the water levels around the Cosme wellfield increased during a period of time during which water withdrawal quantities were being reduced. Starvation Lake has declined from an early 1960s average of 53 feet to 46 feet in about 1995. During a period when pumping from Section 21 was at greater quantities than now, Starvation Lake declined to about 42 feet. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. During the period from late 1991 to mid 1992, the level of Starvation Lake declined by about 37 inches. An analysis of the area precipitation/evapotranspiration indicates that almost 14.4 inches of the decline are attributable to induced recharge from the lake to the aquifer. As to the South Pasco wellfield, the depth to the water table was measured in the mid 70's (after the beginning of pumping from the wellfield) at approximately five feet at the wellfield center, and three feet near the wellfield boundaries. However, one mile north of the wellfield, the depth to the water table was approximately one-tenth of a foot. Camp Lake, located immediately east of the South Pasco wellfield, has shown a decline from a 1970 level of 63 feet to a 1995 level of 57 feet, a decline which corresponds to pumping activity and the related decline in the Floridan aquifer. Water is the driving force in wetlands ecosystems. The duration of water inundation in a wetland is known as the "hydroperiod." A decline in water table levels results in a reduction of wetland hydroperiod. Water storage, wildlife viability and nutrient cycling are water dependent wetland functions which can be negatively affected by a reduction in hydroperiod. Other impacts of reduced wetland hydroperiods include loss of hydric soils, wetland-dependent species declines, replacement of wetland species by upland species including "exotics," tree loss, and an increased incidence of fire. Wetland water inundation or saturation results in the formation of hydric soils by the accumulation of "peaty" organic material at a rate of about one millimeter annually. The lack of oxygen in an inundated or saturated state allows for the accumulation of material at a very slow rate of decomposition. The peaty deposits in the wetlands near the subject wellfields indicate that these wetlands have existed for at least a thousand years. Normal drought conditions will result in some loss of hydric soil. The reduction of the wetland hydroperiod related to groundwater withdrawals near the impacted wetlands provides an increased opportunity for decomposition of the hydric soils. Such decomposition, called "burning" or "oxidation" results in drying and destruction of the peat. As the peat soil dries, its volume is reduced; as the volume declines, the soil subsides. Substantial tree loss is a visible indication that serious soil subsidence has occurred as the soil which formerly supported the tree with nutrients and physical support declines. Wetland plants are those which thrive in the normal wetland environment. Variations in wetland hydroperiod can result in substantial alteration to the wetland community of species. As the wetland hydroperiod is reduced, the growth of "invasion" species such as Melaleuca and Brazilian pepper increased, another indicator of a stressed wetland system. Cypress wetlands are utilized by a number of endangered or threatened species, including the wood stork and the indigo snake, and by various wading birds. As the wetland hydroperiod is reduced, the ability of wetland dependent species to utilize the wetland is similarly reduced. Eventually, the loss of wetlands results in lost breeding grounds, nesting areas and roosts, and eventually the complete loss of the habitat for wetland-dependent species. An increased incidence of serious and destructive fire is another result of decreased hydroperiod and hydric soil alteration. Under normal conditions, fire in cypress wetlands rarely occurs. There may be small fires every few years and a "serious" fire every few hundred years. In normal conditions, fire will burn through vegetation, but inundated or saturated peat soils do not suffer severe fire damage. In an area of reduced hydroperiod, fires can burn through dry soils and declining vegetation, resulting in extensive damage and additional soil loss. About 21 percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with wetlands. Of the 100 square mile area, wetlands make up 35 percent of the land around the Section 21 field, about 15 percent of the land around the Cosme field and 55 percent of the land around the South Pasco field. About 1,500 acres of wetlands are within a one mile radius of the Section 21 wellfield. About 2,000 acres of wetlands are within a one mile radius of the Cosme wellfield. About 1,600 acres of wetlands are within a one mile radius of the South Pasco wellfield. In the area of the subject wellfields, wetlands have been and continued to be impacted by reduced water levels. The conditions existing in the wellfield-area wetlands include soil oxidation and subsidence, increased invasion by "exotic" species, increased incidence of fire, tree loss, and loss of habitat for wetland dependent species. The primary cause of reduced water levels in the wetlands is the lowering of the surficial aquifer caused by water withdrawals at the subject wellfields. This finding is based on the credited testimony of the District's expert witnesses including a review of historical data related to wetland impacts and the wellfield withdrawals, and comparison of wetlands in the vicinity of the wellfields to "control" wetlands away from the wellfield impact. The control wetlands exhibit longer hydroperiods and display fewer signs of ecological stress than do wetlands closer to the wellfields. The control wetlands display a greater abundance of wetland-dependent species than do the wellfield-area wetlands. Notwithstanding the adverse impacts of the permitted water withdrawal, the hydrogeologic systems in the area of the wellfields have reached "dynamic equilibrium." A major water withdrawal from the Floridan aquifer results, after a period of several years, in a shifting of hydrological systems to accommodate the lowered levels. It can take as long as ten years for the changes and restabilization process to occur. Once the aquifer systems have stabilized, the systems have reached a "dynamic equilibrium." The hydrologic systems in the area of the subject wellfields have reached dynamic equilibrium. The evidence establishes that the major adverse impacts which occurred in the vicinity of the subject wellfields began shortly after the inception of water withdrawals from the wellfields. Although clearly adverse environmental impacts have occurred and are the result of water withdrawal, the water systems in the area of the wellfields have "reset" and are now essentially stable at the lowered levels. The Petitioners suggest that the adverse environmental impacts visible in the ecosystems on and near the wellfields can be attributed to natural ecosystem succession. The assertion is not supported by credible evidence. The greater weight of the evidence establishes that the major adverse environmental impacts are related to the withdrawal by the permittees of substantial quantities of water from the Floridan aquifer. The Petitioners assert that recent levels of low rainfall are the primary cause for the lowered lake levels and reduced wetland hydroperiods. The evidence fails to support the assertion. There is insufficient evidence to establish that recent low rainfall levels are indicative of a long term situation. The greater weight of the evidence indicates that recent low rainfall events are likely part of a cyclical precipitate system which historically experiences periods of increased and decreased rainfall. The major adverse environmental impacts to the lakes and wetlands are the result of water withdrawal. The low rainfall levels have exacerbated the situation, resulting in a lack of surficial water inflow into lakes and wetlands sufficient to replace that water which is continuously leaking from the surficial aquifer into the Floridan aquifer, as well as that which is lost from the surface via evapotranspiration. Although environmental monitoring efforts by the Petitioner are suggested to indicate that the deleterious effects of the reduced water levels are being remedied by recent increased rainfall levels, the evidence is insufficient to establish that the impacts of reduced hydroperiods related to groundwater withdrawals will be remedied by a return to "normal" rainfall levels. Recent increased rainfall has contributed to an increase in water levels. The typical changes which would be expected to accompany increased precipitation, such as signs of water in formerly dry littoral zones, are visible in a some areas. However, overall lake levels remain lowered, exposed lake beds are visible, and upland vegetation continues to grow on what was formerly lake bottom. The former shorelines are visible and clearly delineated by vegetation lines. The evidence fails to establish that the recent rainfall increase will correct the adverse impacts caused by the withdrawal of water from the subject wellfields. While the greater Tampa Bay area has recently seen cyclical low levels of precipitation, the predominant cause of the lowered surficial water table in the vicinity of the subject wellfields is the groundwater withdrawals from the wellfields. A return to "normal" rainfall levels will not address the systemic alterations which have occurred in the wellfield-area wetlands. If it is assumed that a lack of rainfall is the cause of the decline in the surficial water table, the conditions of the wellfields should be generally similar regardless of whether the wetlands are on/near the wellfields, or whether they are located at some distance from the fields. The evidence establishes that the wetlands near the area of the wellfields display signs of a gradual and continuing decline. Wetlands outside the wellfield impact do not show the same level of decline. It is reasonable to assume that periods of increased rainfall would result in increased water levels in area lakes, however, a review of data indicates that the lakes near the wetlands do not respond to rainfall in a normal manner. Despite two years of average to above average rainfall, the lakes at the Section 21 and Cosme wellfields continued to be substantially below normal. A comparison of potentiometric surfaces at monitoring wells on and off the wellfield sites further establishes that the lowering of the water table is not a precipitation-induced event. Monitoring wells on the wellfield sites have shown substantially increased reductions in potentiometric surface as compared to monitoring wells located in areas not impacted by the withdrawals. The Petitioners assert that area drainage projects have caused a reduction of water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to establish that there have been regional or local surficial flow changes sufficient to result in the reduction of water in nearby lakes and wetlands or in the decline in the surficial aquifer. Although drainage projects near some wellfields could potentially impact surface water movement, the evidence that such drainage projects are responsible for the lowering of the surficial water table in the vicinity of the wellfields is not persuasive. The Petitioners assert that land development in the area of the wellfields has resulted in reduced water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to support the assertion. The type of analysis required to establish the impacts of drainage on surficial water systems has not been performed. Current surface water management system permitting rules in effect since 1984 are designed to reduce the impacts of surface drainage on surrounding waterflow systems. Systems constructed in compliance with permitting rules retain water on the development site and can provide additional groundwater recharge. The evidence is insufficient to establish that significant development near the Section 21 wellfield is the cause of the lowered water levels on or near the wellfield There is relatively little urban development near the Cosme and South Pasco wellfields which could potentially impact water flow. The evidence fails to establish that the existing development hydrologically impacts the wellfield. The evidence fails to establish any relevant impacts caused by highway construction on the area hydrology. The Petitioners also assert that, rather than the South Pasco wellfield pumping, it is the land management practices by property owners to the east of the South Pasco field which are responsible for degraded conditions. Although land management practices, specifically burning, may have damaged wetlands, dry conditions related to pumping-related surficial aquifer declines likely resulted in more severe burn damage than would have otherwise occurred. "BASELINE" The District has adopted by rule permitting criteria which are considered in the review of an application for water use permit. The permitting criteria are further addressed in the District "Basis of Review." In part, the review of a water use permit application seeks to determine the anticipated impact of the proposed water withdrawal on wetlands, water resources and other natural systems by utilization of the permitting criteria and the Basis of Review (BOR). Such analysis requires establishment of a "baseline" against which anticipated impacts may be predicted. The baseline provides a point against which future impacts to a resource by a permitted water withdrawal can be measured. A baseline also provides a standard by which the success of mitigation efforts can be measured. The permitting history for the subject wellfields, including review of staff analyses, indicates that the adverse environmental impacts related to the water withdrawals were known to the District during earlier permit application considerations. The evidence establishes that in prior permit decisions, the District determined that the adverse environmental impacts were anticipated, and exempted the permittees from certain environmental standards which would likely have reduced the adverse impacts. The District Governing Board's decision to exempt permittees from meeting certain criteria related to adverse environmental impacts where such exemption was in the "public interest" was a discretionary act by the Board. The evidence fails to establish that the adverse environmental impacts caused by the actual withdrawal of water at current quantities from the subject wellfields have exceeded the adverse impacts which were previously deemed acceptable by the District. Although the District's rules have been changed to eliminate the granting of exemptions from permitting criteria, the evidence fails to establish that the District was ever required to exempt an applicant from meeting the criteria. The four wellfields at issue in this proceeding have operated in compliance with the permits issued by the District. None of the wellfields have been cited for violations of permit conditions. There is no evidence that any Notice of Violation has been issued regarding any operational aspect of these wellfields. There is no evidence that the District has initiated any permit condition enforcement action related to these wellfields. The District has been authorized under the previous permits to require mitigation of adverse environmental impacts related to the permitted withdrawals. There is no credible evidence that the District has taken formal action to require mitigation of adverse environmental impacts related to the subject groundwater withdrawals. The environmental conditions caused by withdrawal of water at the subject wellfields are those which were previously deemed acceptable and consistent with the public interest by the District. For purposes of this Recommended Order, baseline conditions are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications. EXISTING PERMITTED ADVERSE IMPACTS The evidence establishes that there have been adverse environmental impacts in the area of the South Pasco wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at South Pasco include a reduction in wetland hydroperiod, significant biological change, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, increased damage by abnormal fire, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to South Pasco water withdrawal include adverse impacts to Camp Lake, Mary Lou Lake, Lake Ruth, and Long Sun Lake. The water level at Camp Lake has shown substantial impact since the initiation of pumping. Other lakes have been impacted to the extent that aesthetic and recreational values are impaired. Animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Section 21 wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Section 21 include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Section 21 water withdrawal extend at least one mile from the wellfield and include adverse impacts to Starvation Lake, Lake Jackson, Lake Simmons, Lake Oakley and Lake Crum. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Cosme-Odessa wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Cosme-Odessa include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Cosme-Odessa water withdrawal extend at least one mile from the wellfield and include adverse impacts to Horse Lake, Church Lake, Lake Rogers, Lake Raleigh, Lake Amelia and Calm Lake. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. As compared to the other three wellfields at issue in this proceeding, the impacts related to the NWHRWF are minimal. Given the "linear" nature of the NWHRWF, wellfield-related adverse environmental are not localized but spread over a larger area than is the case with the other production wellfields. Accordingly the signs of environmental degradation which are visible at the other three wellfields are not visible in the vicinity of the NWHRWF. Two wetlands in the vicinity of the NWHRWF currently exhibit hydrologic impacts and upland species invasion, one near the "NW-1" well and another near the intersection of Gunn Highway and Turner Road. The evidence fails to establish that the adverse impacts at these two wetlands are related to the production of water at the NWHRWF. PERMITTING CRITERIA AND ACTUAL CURRENT WITHDRAWALS The evidence establishes that for the quantity of water currently being withdrawn from the wellfields, the applicants meet the relevant permitting criteria. To obtain the water use permits sought in this proceeding, the Petitioners must establish that the proposed use of water is a reasonable-beneficial use, that the proposed use will not interfere with any presently existing legal use of water, and that the proposed use is consistent with the public interest. As to the quantity of water currently being withdrawn from the wellfields, the evidence establishes that the proposed use of water is a reasonable-beneficial use, the proposed use will not interfere with any presently existing legal use of water, and the proposed use is consistent with the public interest. The evidence establishes that there will no new adverse environmental impacts caused by the continuation of pumping from the subject wellfields at quantities currently being withdrawn. The continuation of water pumping at current actual levels of withdrawal will continue the ecological decline already in progress, but will not result in new kinds of adverse environmental impacts. Over the long term, areas of reduced hydroperiod will continue to experience invasion by upland species and soil oxidation. The biological characteristics of the impacted areas have been altered. Wetland obligate vegetation will continue to decline. Populations of lake and wetland dependent creatures will be reduced as the water levels remain lowered by the impact of the pumping. Fires will continue to pose an increased threat to the already damaged wetlands. Despite the existing adverse impacts, there is no credible evidence that impacted areas would return to prepumping conditions even if pumping were halted from the subject wellfields. The actual withdrawal of water at levels not greater than those currently being pumped is a reasonable and beneficial use of the resource. The provision of potable water to the customers of the water utility systems which receive water from the authority is a reasonable and beneficial use of the resource. There is no evidence that the existing potable water requirements of the end users may be met by any other currently available water resource. The actual withdrawal of water at levels not greater than those currently being pumped will not interfere with other existing legal uses. The evidence establishes that where existing water uses predate the District's water use permitting program, such existing uses are not required to demonstrate non-interference with other existing legal uses unless the applicant proposes to withdraw additional quantities or create an impact greater than was previously permitted. In this case, the Petitioners seek to have the existing permits renewed at the quantities set forth in the existing permits. The proposed use is consistent with the public interest. The reliable provision of high quality water to the citizens of Florida is necessary to meet public health and safety requirements and is clearly consistent with the public interest. The Authority supplies water to a total population estimated at 1.8 million residents. Although the wellfields at issue in this proceeding supply only about 35 percent of the permitted water capacity distributed by the Authority, the evidence establishes that it is unlikely the Authority could supply the quantities currently required without utilization of these wellfields. Though the Authority operates an interconnected water supply system, the existing configuration of the supply lines does not allow for unrestricted provision of water from any wellfield to all users. The Section 21 wellfield supplies water to the residents of northwest Hillsborough County. Were the Section 21 wellfields to be unavailable, the Authority could not immediately route water to the northwest Hillsborough users from other fields. Likewise, the other three wellfields supply water to St. Petersburg, and the Authority would be unable to meet water requirements were the wellfields closed or pumping was substantially restricted. The District asserts that the lack of proper permits does not necessarily lead to the conclusion that these wellfields would be closed, and that water could be legally pumped via a series of emergency orders. There is no evidence that the District has made any legally binding commitment to allow for water withdrawals outside the appropriate permitting process. There is no evidence that the denial of permit renewal applications is an appropriate method for remedying adverse environmental impacts which are the result of previous permitting decisions and which were identified prior to issuance of the existing permits. Although the Petitioners estimate the cost of developing a water resource to replace the permitted capacity lost if these applications are denied to be about $180 million dollars, the cost estimate has insufficient supporting documentation to indicate that it is accurate. There is no evidence that the permittees have initiated any credible effort to replace the total quantity of water being withdrawn from the subject wellfields with new water sources of similar quality. The evidence establishes that at current actual quantities of water withdrawal, the Petitioners comply with the criteria requirements for issuance of the permits. Reasonable assurances have been provided that the withdrawal of water at the quantities currently being pumped is necessary to fulfill a certain reasonable demand for water. The actual quantity being withdrawn at the subject wellfields is necessary to meet current reasonable demand. The evidence further establishes that the actual quantity being withdrawn at the subject wellfields is capable of continuing to meet potable water demand during the permit renewal period. As for projected future demand, St. Petersburg estimates that it will need 43 mgd of water by 2007. The maximum annual average daily withdrawal from these wellfields is as much as 40.9 mgd. St. Petersburg receives an additional 6.2 mgd from the Authority as part of a water agreement "entitlement." Absent any additional available resources, the total maximum available quantity of 47.1 mgd would be sufficient to meet the water requirements of St. Petersburg. However, the evidence as to future demand in St. Petersburg fails to establish that St. Petersburg will require actual total withdrawals at the maximum levels currently permitted. Between 1983 and 1994, St. Petersburg's potable water use averaged about 39 mgd. From 1991 to 1994, the potable water use was about 37 mgd, indicating that potable water use is declining. At the hearing, St. Petersburg produced data which indicated anticipated total demand could be as low as 40.8 mgd, based on current usage patterns. The evidence establishes that St. Petersburg's water requirements can be met without increasing the actual quantities of water currently being withdrawn from the subject wellfields. Expanded and more appropriate utilization of the reclaimed water which is already available, and additional conservation measures and use restrictions identified in the pending Water Resource Development Plan, will provide sufficient water without increased withdrawals from the subject wellfields. Given the reduction in water use though increased utilization of reclaimed water and additional conservation measures, the evidence establishes that the projected water needs can be met without increasing the quantities currently being withdrawn from the subject wellfields. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact the water resources, including both surface and ground waters, beyond those previously permitted by the District. The continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact water resources, beyond those previously known to and permitted by the District. There is no credible evidence that any new adverse environmental impacts will result from withdrawal at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters, beyond those previously permitted. Adverse environmental impacts have resulted from the permitted withdrawal of groundwater as identified elsewhere in this order. The District has had the ability to require mitigation through conditions attached to prior permits. The District has the authority to continue to attach mitigation conditions to the permits issuing from this proceeding. There is no evidence that adverse environmental impacts caused by groundwater withdrawal can not be mitigated, however, it is difficult to determine, absent any direction from the District, the type of mitigation which would meet the District's approval. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. To the extent that such ranges are established, the evidence establishes that water withdrawals at current actual levels will not result in deviation from established ranges. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize the lowest quality water that the Applicant has the ability to use. St. Petersburg initiated a water reuse program in 1977, and is committed to expansion of the reuse system. The reuse program replaces potable water with reclaimed water in irrigation and some industrial applications. The St. Petersburg reuse program is nationally recognized. St. Petersburg currently has excess capacity in its reclaimed water system and has begun to increase the rate of expansion by reducing connection fees and taking other steps to allow easier neighborhood access to the reuse system. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact offsite land uses existing at the time of the application, beyond those previously impacted by permitted withdrawals. There will be no additional adverse impact to offsite land uses existing at the time of the application as a result of the continued withdrawal of water at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact any existing legal withdrawal beyond those previously impacted by permitted withdrawals. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize local resources to the greatest extent practicable. The evidence establishes that the potable water being withdrawn from the subject wellfields constitutes utilization of local resources to the greatest extent practicable. There is no credible evidence that a sufficient potable water supply is located more proximately to the St. Petersburg water users. The District asserts that the alleged misuse of excess reclaimed water demonstrates a failure to utilize local resources to the greatest extent practicable. The evidence does not support the assertion. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will incorporate water conservation measures. The District has set a per capita water use goal for the Northern Tampa Bay region of 140 gallons per day (gpd) by the beginning of 1997 and 130 gpd by the start of 2001. St. Petersburg's current water use rate is 122 gpd, substantially below the District's level. The evidence establishes that substantial efforts are being made by the Petitioners to reduce water use where such is economically feasible. St. Petersburg enforces lawn watering restrictions. New construction standards and a program aimed at replacement of existing residential bath fixtures encourage use of water-saving fixtures. St. Petersburg utilizes a water use rate structure which encourages conservation. Specific water conservation goals have been established. The District asserts that the Petitioners have not sufficiently demonstrated a commitment to conserve water to the satisfaction of the District. The fact that current water use in St. Petersburg is less than in other local areas, and in fact is below the District's mandated rate for 2001, suggests otherwise. While it is almost always possible to suggest that "more should be done," the evidence establishes that the Petitioners are making a good faith effort to conserve water resources. It is reasonable to expect that the Petitioners will continue to explore methods of reducing potable water use. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water to go to waste. The District criticizes St. Petersburg's reluctance to meter the use of reclaimed water and suggests that the lack of metering results in excess use of the available reclaimed water, which could otherwise (assuming expansion of the system) be available to other users. St. Petersburg states that metering would discourage use and that one of the goals of the reuse program is to dispose of wastewater. Unused reclaimed water is disposed of by deep-well injection. St. Petersburg asserts that the reuse program has the capacity to serve about 11,750 customers. At the end of 1994, there were about 7,600 customers. The evidence establishes that there is excessive use of reclaimed water by some consumers. Moderating excessive reclaimed water use would permit the system capacity to serve a total of about 17,000 customers. Increasing reclaimed water service to 17,000 customers could reduce the need for potable water by five mgd. It is logical to assume that as the potable water supply becomes less available and more costly, reclaimed water will become more valuable and more important in meeting the water needs of St. Petersburg It is likely that limitations on water withdrawals from the subject wellfields will serve to increase the value and utilization of reclaimed water. The District asserts that St. Petersburg's reuse system encourages overuse of reclaimed water and discourages citizens from connecting to the reuse system. Expansion of the reuse system requires installation of distribution lines. While there is no credible evidence that St. Petersburg's expansion program has been intentionally delayed, high connection charges and threshold for neighborhood participation have delayed system expansion. The evidence establishes that there is additional demand for reclaimed water by users in St. Petersburg. Reuse distribution lines are installed in neighborhoods where water users express interest in obtaining the reclaimed water. During a recent "sale", citizens were encouraged to connect to the reuse system through subsidized connections. St. Petersburg reduced from 50 percent to 30 percent, the number of homeowners who must agree to connect to the system prior to distribution line installation. Reduced-interest and extended payment loans were made available to homeowners to pay for the cost of connection. More than 2,000 customers signed up during the "sale." It will take about a year and a half for the city to meet the expansion demand established through the sale. The District asserts that metering of the reuse system will reduce waste of the reclaimed water. Although St. Petersburg suggests that metering will discourage use of the reclaimed water system, St. Petersburg is currently installing water meters to test the impact created by metered use. At this time, the evidence fails to establish that metering will reduce waste, though it is reasonable to assume that metering, and a conservation oriented rate structure, will reduce excess use. PERMITTING CRITERIA AND MAXIMUM QUANTITIES The existing permits allow for water withdrawals at quantities higher than those currently being withdrawn. The combined actual average daily withdrawals at the four wellfields total about 40 mgd. The maximum permitted capacity at the four subject wellfields is about 49 mgd. The evidence is insufficient to establish that at the 49 mpg maximum withdrawal levels set forth in the current permits, the Petitioners comply with the criteria requirements for issuance of the permits. The Petitioners assert that adverse environmental impacts will not occur even if pumping is at full permitted capacity. The evidence fails to support the assertion. Testimony that pumping from the subject wellfields could be increased by as much as 25-30 percent without an increase in the severity and extent of adverse environmental impacts is without credible foundation and is rejected. The issue of "rotational capacity" is offered by the Petitioners as rationale for issuance of permits which permit pumping beyond the quantities currently being withdrawn. Interconnected wellfields offer the ability to rotate withdrawals between the connections in order to allow time for repairs to a well, and to allow some facilities to "rest" and recover from environmental stress. In order to provide this ability, pumping from one of the interconnected wellfields is increased to reduce pumping from the stressed wellfield. The "rotational capacity" of the system is the quantity of water above that which is currently being withdrawn and which allows for pumping to be increased at the less stressed wellfield. The evidence fails to establish that "rotational capacity" can not be achieved without permitting withdrawals from the wellfields to increase above those quantities currently being withdrawn. The evidence fails to establish that increased water withdrawals, up to the maximum quantities set forth in the existing permits, will not interfere with other existing legal uses. The evidence fails to establish that pumping from the subject wellfields at maximum permitted quantities will not result in additional adverse environmental impacts. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause quantity or quality changes which adversely impact water resources, including both surface and ground waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. MITIGATION The evidence fails to establish that the Petitioners have proposed any appropriate mitigation which would address the existing environmental impacts of water pumping from the subject wellfields. Further, no acceptable mitigation plans have been proposed to address the adverse impacts which would accompany increased withdrawals from the four wellfields. The Authority has proposed an Environmental Management Plan (EMP) which provides a method of monitoring environmental conditions to determine whether mitigation of impacts would remedy adverse impacts. Although the EMP could provide reliable data in addition to that already available, the EMP, even if implemented, does not constitute mitigation of adverse impacts. One form of possible mitigation suggested by the Petitioners is the concept of "augmenting" lakes and wetlands by the addition of water taken from other lakes or wells to lakes with lowered water levels, or by the addition of excess reclaimed water to wetlands. The augmentation proposal is specifically addressed in St. Petersburg's "4-D's" report. The evidence fails to establish that the 4-D's report presents a reasonable mitigation proposal. Augmentation presents a number of biological concerns related to the addition of one type of water to another. Such issues include alteration of water balance, introduction of different non-native microscopic organisms into the receiving water, nutrient alteration, and coliform bacteria concerns. The evidence fails to establish that lake and wetland augmentation is an adequate or appropriate means of mitigating adverse impacts related to groundwater withdrawal. The evidence that the District has permitted lake augmentation in other situations fails to establish that such mitigation is an adequate method of addressing adverse impacts related to groundwater withdrawal. The evidence establishes that the Authority has implemented a "Good Neighbor Policy" under which the Authority repairs or replaces local private wells which experience problems possibly related to the water withdrawals at the NWHRWF. There is evidence that the Authority makes such repairs without determining the actual cause of the problem in an attempt to address local citizen complaints. The Authority has implemented the policy voluntarily. In two cases, the District received complaints from citizens unsatisfied by the Authority's response. The Authority provided additional assistance and eventually remedied the problems. Although the "Good Neighbor Policy" provides an adequate program to address the concerns of private individuals in the area of the NWHRWF, the evidence fails to establish that the general policy is adequate mitigation of the adverse environmental impacts caused by the wellfield water withdrawal. A monitoring program being performed on behalf of the Petitioners could provide an acceptable framework for monitoring and mitigating future adverse environmental impacts. Beginning in 1983, an environmental monitoring program was established by Water and Air Research, Inc., (WAR) for the NWHRWF. The water use permit for the NWHRWF requires implementation of a monitoring program. The NWHRWF monitoring program includes 67 monitoring stations and additional transect areas, and covers an area of approximately 120 square miles including areas near the Section 21 and Cosme-Odessa wellfields. The data collected from the monitoring program was published in annual reports which have been submitted by West Coast to the District. Beginning in 1991, WAR established an environmental monitoring program at the South Pasco wellfield on behalf of the Authority and St. Petersburg. The South Pasco wellfield permit does not require implementation of an environmental monitoring program. The WAR/South Pasco monitoring program includes nine monitoring stations. The data collected from the WAR/South Pasco monitoring program was published in three annual reports. In addition to the WAR monitoring program, CH2M Hill was retained in anticipation of these permit renewal applications to assess the condition of the South Pasco, Section 21, and Cosme-Odessa wellfields. CH2M Hill designed a three phase assessment program which includes a comparative review of land uses around the wellfields, a comparative review of ecological function both on- site and off-site of the fields with available historical data, and a detailed quantitative survey of current ecological conditions at the wellfields and at identified control sites. Although the WAR monitoring programs or the CH2M Hill assessment project are not without flaws, they provide the ability to quantify any future adverse environmental impacts caused by the continued withdrawal of water from the subject wellfields against a more detailed "baseline" measurement than that which has previously been available. The WAR/CH2M Hill programs also appear to provide the ability to gather more site- specific data than any program currently being utilized by the District. The WAR/CH2M Hill projects are not accepted for the purposes of determining historic impacts which have occurred since the inception of water withdrawals from the subject wellfields. The analysis of land use changes in the areas of the four wellfields, suggesting that the adverse environmental conditions were primarily related to factors other than pumping, was not persuasive. Evidence as to whether the selection of monitoring sites for the WAR/CH2M Hill projects appropriately represent the current state of the lakes and wetlands in the area of the wellfields was unpersuasive. Further, the WAR/CH2M Hill analysis of the current data provided by the witnesses involved in the project was not credible as to conclusions that the adverse impacts were being reversed by the recent cyclical return to more rainfall. It is not unusual to expect that where wetlands still exist, increased rainfall would show increased abundance of wetland dependent species. Increased rainfall results in temporarily increased lake levels and visible upland vegetation die-off will occur when the water level reaches the vegetation. The data is insufficient at this time to establish that there is any general "recovery" occurring in the ecosystems impacted by the withdrawal of water from the Floridan aquifer. The Petitioners assert that the WAR/CH2M Hill projects are more intensive than the monitoring projects utilized by the District. The evidence establishes only that over an extended period of time, the WAR/CH2M Hill projects are capable of providing quantities of detailed data related to the condition of the wellfields. The evidence fails to establish that the data currently generated by the WAR/CH2M Hill projects provides a basis for reliable long term analysis. THE NWHRWF DEFAULT PERMIT ISSUE As stated previously, the Authority asserts entitlement to an unrestricted default permit for the NWHRWF. The evidence establishes that the Authority is entitled to a default permit, but does not support issuance of an unrestricted water use permit. During the permit renewal process, the NWHRWF application was combined with the Manors at Crystal Lake wellfield permit which had been held by Hillsborough County. Hillsborough County turned operational responsibility over the wellfield and over the renewal permitting process to the Authority. Notice of the District's completeness determination was sent not to Hillsborough but to the Authority, which was identified on the permit as the applicant. Prior to the District's first decision deadline, the District sought by letter to Hillsborough and copy to the Authority, an extension of the deadline to December 31, 1994. By separate letters, both Hillsborough and the Authority consented to the extension. The District was apparently unable to act by the deadline and sought a second extension to March 1, 1995, but the District's request was sent only to a representative of Hillsborough County. No copy of the request was provided to the Authority. At the time the District sought the second extension from Hillsborough County, the District had been notified that the Authority had assumed responsibility for the NWHRWF/Crystal Lake renewal application. The District claims that the request to Hillsborough County, rather than to the Authority was proper because Hillsborough had been the permittee on the expiring permit. However, the District had notified only the Authority that the combined applications had been deemed complete. Apparently unaware that Hillsborough had withdrawn from the permit renewal application process, the Hillsborough representative consented to the second extension, but did so without consultation with the Authority. The Authority did not consent to the second extension. At the time the District sought the second extension, Hillsborough County had no responsibility for or authority regarding the combined NWHRWF/Crystal Lake renewal application. The District issued it notice of proposed action on the NWHRWF on February 7, 1995. The Authority asserts that it is entitled to an award of a default permit for the NWHRWF based upon the failure of the District to grant or deny the permit by the December 31, 1994 deadline extension to which the Authority had consented. The evidence fails to establish that the Authority is entitled to receive an unconditioned permit based on the District's failure to meet the December 31 deadline. The evidence does establish, based upon the failure of the District to meet the December 31 deadline or obtain an extension from the Authority as the applicant for the permit, that the Authority should receive a ten year permit for operation of the NWHRWF subject to the conditions set forth herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order: Granting water use permits for the subject wellfields with the following conditions: The permits should be valid for a period of ten years from the date of issuance. The maximum permitted quantities for each of the four permits should be reduced to not more than the average annual daily quantity currently being withdrawn at each wellfield. In order to provide rotational capacity, the permits should be structured to provide, upon approval of the District, for water withdrawal in excess of the permitted quantities at any of the four wellfields, so long as the increase in withdrawal from one wellfield is balanced by decreased withdrawal at another wellfield. The renewal permits should provide for no increased water withdrawals beyond the actual quantities currently being pumped from these wellfields. Environmental monitoring should continued and be expanded to include areas not currently being monitored. The monitoring program should be jointly undertaken and funded by the permittees and the District. The District shall determine the number and placement of monitoring stations and the frequency with which data shall be collected and reported. The Authority's "good neighbor" policy at the NWHRWF should be made a condition to the NWHRWF permit. The City of St. Petersburg's water reuse program should be expanded to provide additional service where such expansion is feasible. St. Petersburg shall implement continuing measures to encourage enrollment of new customers, including permanent reductions in connection fees and neighborhood participation thresholds, as has been done during the recent campaign to increase connections. St. Petersburg shall also implement measures to reduce the excessive use of reclaimed water by current customers. The District shall establish time-specific deadlines by which St. Petersburg's compliance with this condition can be measured. The permits should include all standard conditions which are generally applicable to the subject water use permits. RECOMMENDED this 29th day of May, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: E. D. “Sonny” Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Donald D. Conn, Esquire West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 John T. Allen, Esquire Post Office Box 14332 St. Petersburg, Florida 33733-4332 Kim Streeter Assistant City Attorney Post Office Box 2842 St. Petersburg, Florida 33731 Daniel P. Fernandez, Esquire Laura A. Olson, Esquire 3820 Northdale Boulevard, Suite 312B Tampa, Florida 33624 Douglas Manson, Esquire 100 South Ashley Drive, Suite 1190 Tampa, Florida 33601 Edward P. de la Parte, Jr., Esquire Michael A. Skelton, Esquire Post Office Box 2350 Tampa, Florida 33601-2775 Richard Tschantz, Esquire James A. Robinson, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. Gary Early, Esquire 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301 John W. Wilcox, Esquire Derek Spillman, Esquire 100 South Ashley Drive, Suite 1500 Post Office Box 3273 Tampa, Florida 33601 Frederick T. Reeves, Esquire 5709 Tidalwave Drive New Port Richey, Florida 34652 H. Ray Allen Assistant County Attorney Post Office Box 1110 Tampa, Florida 33601 Karen E. Maller, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 David Forziano Assistant County Attorney 601 East Kennedy, Boulevard, 27th Floor Post Office Box 1110 Tampa, Florida 33601 Stanley J. Niego, Esquire Prosperity Bank Building 100 Southpark Boulevard, Suite 405 St. Augustine, Florida 32086
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
The Issue Whether applicable law authorizes the Division of Administrative Hearings to conduct a hearing on the merits of issuing a permit, where the referring agency issued the permit almost three months before the objectors' petition for hearing was filed?
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER enter a final order dismissing with prejudice the amended petition for formal proceeding under Section 120.7, Florida Statutes, filed by Freeport and STI. DONE and ENTERED this 25th day of September, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William L. Earl Esquire One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 Joe W. Fixel, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John T. Allen, Jr., Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Edward P. de la Parte, Jr., Esquire 403 N. Morgan Street, Suite 102 Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FREEPORT SULPHUR COMPANY, Division of FREEPORT MINERALS COMPANY, and SULPHUR TERMINALS, INC., Petitioner, vs. CASE NO. 78-527 DEPARTMENT OF ENVIRONMENTAL REGULATION, and AGRICO CHEMICAL COMPANY, Respondent. /
Findings Of Fact The Petitioner and his father own and operate the Hiland Park Laundry, a laundromat located at 2431 Highway 231, Panama City, Florida. The Petitioner purchased the business in 1975 and has operated continuously since that time. Wastewater from the laundry, as well as a trailer on the property, passes through a "trickling filter" wastewater treatment facility consisting of primary and secondary settling tanks as well as a trickling filter, thus discharging the treated effluent into a drainage ditch adjacent to the Petitioner's property line, from which drainage ditch the effluent is discharged into Beatty Bayou, a Class III water of the State. The treatment plant and disposal system has been operating since the early 1970's, prior to the Petitioner's purchase of the laundromat and treatment and disposal facility. In 1980, the Petitioner applied for an operating permit for his wastewater treatment facility. Because the discharge from the facility violated the effluent limitations of Chapter 17-6, Florida Administrative Code, the Petitioner was only issued a Temporary Operating Permit on February 2, 1981, which was modified by virtue of the letter from DER on June 8, 1981. The pertinent conditions in the TOP provided that the discharge from the Petitioner's wastewater treatment system must meet the requirements of Chapter 17-6, Florida Administrative Code, as to the quality of its effluent prior to its expiration. Failure to meet that condition would result in a denial of a Permanent Operating Permit and the denial of any further TOP. The pertinent effluent limitation which the TOP (and rules) required the facility to meet was 90 percent removal of biochemical oxygen demand and suspended solids. Since the issuance of the TOP, the discharge from the plant has seldom met those standards. Upon applying for the TOP, which is the subject of this proceeding, the Petitioner failed to present any concrete plans for improving the quality of the effluent from his plant. He merely stated his acknowledgment that, although the system does not comply with current DER requirements, that it will be dismantled upon the Bay County Regional Sewage Treatment and Disposal System becoming available at his location. It is not established, however, that there are any current plans to extend public sewer service to the vicinity of the Petitioner's property at the present time. (DER Exhibit 9) Upon the issuance of the Notice of Intent to Deny the request for the TOP, the Petitioner requested a formal proceeding and the cause was set for hearing before the undersigned on September 24, 1982. At the time of the hearing, the parties agreed on the record to a continuance on the basis that the Petitioner would submit within 60 days a plan certified by an appropriate engineer for a design to bring the discharge effluent into compliance with the effluent parameters of Chapter 17-6, Florida Administrative Code. It was suggested at that time to the Petitioner that his plant and system might comply with the permit exemption contained in Rule 17-4.60, Florida Administrative Code, which provides that such plants are exempt from permitting requirements if they incorporate a trickling filter, a sand filter, as well as a drain field. The Petitioner elected to avoid purchasing a sand filter unit inasmuch as a civil engineer he consulted informed him that the purchase and installation price for such a unit would be approximately $17,000.00, with the attendant drain field estimated to cost an additional $13,000.00. It was established contrarily however that because of the actual peak and average flows of the plant which equate to a daily hydraulic loading on the proposed sand filter of 7,000 gallons per day and 6,000 gallons per day, respectively, that a much smaller sand filter would be required, at a much reduced price. Thus, it was established that a figure of $9,000.00 to $10,000.00 would be the appropriate cost of installing the sand filter which would exempt the facility from the permitting requirements. The concrete slab proposed to be used by the Petitioner's engineer at a cost of in excess of $4,000.00 would not be necessary with a properly designed sand filter with underdrains and grated gravel courses. Based upon his own engineer's estimate of approximately $30,000.00 for the required upgrading, the Petitioner informed the Department that he was not able to underwrite such a high expense and would prefer to find some other solution to the problem. As of the date of the hearing, the Petitioner still was desirous of the Department conferring with him to find a less expensive solution to the problem, but failed to adduce any evidence to establish that such a less expensive solution (less than the solution proposed by the Department) existed. During the period the case was held in abeyance for 60 days after the scheduling of the first hearing in September, 1982, during which time the parties had agreed to seek a solution to the problem involving denial of the permit application, and thereafter until the subject hearing, the Petitioner made no substantial efforts to confer with the personnel of DER and attempt to arrive at a feasible solution to the treatment and disposal problem upon which the denial of the permit application was based. Carol Daugherty is a chemist whose firm supplies the Department with the Petitioner's monthly operating reports, and obtains samples of effluent upon which those reports are based. She performs the testing on the samples from the plant's effluent discharge and engages somewhat in operation of the plant. The Petitioner's discharge has consistently failed to comply with the BOD and total suspended solids effluent limitations listed in Rule 17-6.060, Florida Administrative Code, providing for 90 percent removal of those effluent constituents. William Young, accepted expert witness in the field of biology and water quality assessment, visited the site in February, 1982, and in April, 1983, taking water quality samples from a drainage ditch both upstream and downstream of the Petitioner's discharge point. Chemical analysis of the samples reveal that the Class III parameter for bacteriological quality (coliform bacteria) was violated downstream of the discharge point. An imbalance existed in the bayou in natural populations of aquatic flora and fauna establishing there to be violation of permissible nutrient levels in terms of the excessive deposition of nutrients from the Petitioner's plant into the drainage ditch and thence into the bayou. Mr. Pressley's facility is not the only source of discharge into the drainage ditch which discharges into the bayou, but is the primary source of discharge. Rick Bradburn also was accepted as a expert witness in the field of biology and water quality assessment. He has visited the Petitioner's facility on a number of occasions and periodically has reviewed the monthly operational reports supplied by the Petitioner. The Petitioner's effluent, on a regular basis, is characterized by excessive biochemical oxygen demand, excessive total suspended solids and excessive fecal coliform bacteria counts vis-a-vis the standards and the rules cited hereinbelow. The discharge from the Petitioner's facility thus seldom exceeds 85 percent removal of biochemical oxygen demand and suspended solids (over the past 23 months) and is characterized by excessive nutrient deposition in the Class III waters of the State. The Petitioner has known, or should have known, since shortly after February 2, 1981, when the original TOP was issued with the subject condition regarding required upgrading of the plant and disposal system, that additional upgrading would be required in order to render the effluent produced by plant less degradory. Since that time he knew, or should have known, that the failure to take steps to achieve such upgrading of the treatment and effluent disposal system would jeopardize his continued operation of his business. The Petitioner has made little effort to arrive at and submit plans to achieve a more qualitative level of effluent treatment and as of the time of the hearing had not yet submitted a reasonable compliance schedule nor any sort of commitment to construct needed additional treatment facilities, even though the parties do not dispute that the effluent produced by the plant does not meet the required standard of 90 percent removal of biochemical oxygen demand and suspended solids.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Freddie Pressley for a Temporary Operating Permit allowing continued operation of a wastewater treatment and disposal facility in Bay County, Florida, be and the same is hereby DENIED. DONE and ENTERED this 23rd day of August, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1983. COPIES FURNISHED: Freddie Pressley c/o Highland Park Laundry 2431 Highway 231 Panama City, Florida 32405 Dennis R. Erdley, Esquire Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides: The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that: The hardship was not caused intentionally by the action of the applicant; No reasonable alternative exists for the treatment of the sewage; and The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows: Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added). The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory." While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about August 1, 1978, respondent Pilot Properties, Inc. filed an application with the Department of Environmental Regulation for the issuance of a construction permit to expand and enlarge a wastewater treatment facility from 18,000 gallons per day to 150,000 gallons per day. The DER issued its notice of intent to issue the permit on November 13, 1978, and the Perdido Key Development Association, Inc. timely requested a hearing on said notice. Over the objection of respondent Pilot Properties, Southwest Escambia Improvement Association, Inc. was joined as a party petitioner. The Perdido Key Development Association, Inc. subsequently withdrew as a petitioner. The remaining petitioner, Southwest Escambia Improvement Association, Inc. is comprised of members who reside on, own property on or have a business interest in Perdido Key. Among its purpose are the improvement of the Perdido Key community and the protection of the environment. The members of the Association utilize Old River for recreational and commercial purposes. The proposed expanded facility is designed to serve cluster homes and condominium complexes on Perdido Key, for a total of approximately 428 units. It will utilize a contact stabilization process whereby raw sewage enters the plant from the individual units, receives treatment and then the effluent is discharged evenly through a spreader or equalizer into two percolation ponds continuing approximately 54,000 square feet. The facility is designed to remove 95 percent of B. O. D. and suspended solids. The plant is not designed to remove nutrients. The percolation ponds serve as a disposal device, and not a treatment device. The ponds are to be constructed at an elevation of six feet. Considering fluctuation, the percolation pond bottoms will be separated from the groundwater by three feet. It is an accepted DER guideline to require a three foot separation between the groundwater and a percolation pond. The conditions of the proposed permit require that a three foot buffer zone be maintained between the bottom of the ponds and the maximum groundwater elevation. The nearest edge of the percolation pond will be located approximately 105 to 110 feet from the water line of Old River. The effluent will be discharged from the plant to the percolation pond and then to the groundwater, which ultimately flows in the direction of Old River. Groundwater monitoring wells are provided to measure the level of nitrogen. The soil on Perdido Key is course-type sand, with little clay or silt. It has a very rapid vertical percolation rate. According to the respondent's witness who qualified as an expert in ecology and botany, the process of adsorption, precipitation and denitrification which occurs as groundwater moves horizontally will prevent the degradation of Old River. This witness observed no suspicious levels of phosphate in samples from Old River. This witness observed no suspicious levels of phosphate in samples from Old River. He found the phosphate nitrate and fecal chloroform level of Old River comparable to that found in other clean water bodies. The petitioner's witness who qualified as an expert in aquatic ecology took samples of groundwater and sand from various areas on Perdido Key to analyze their nitrate and phosphate content. It was his conclusion that phosphate was not attenuated by the sands and that nutrients, particularly phosphate, are being discharged into Old River from sewage treatment facilities existing on Perdido Key. He observed a shifting of the composition of flora in Old River near the site of another existing sewage treatment facility which was not designed to remove nitrates or phosphates. However, the other existing facility was not shown to be comparable in the size of its percolation ponds, the pond elevation from the groundwater or in the manner of discharge form the plant to the percolation pond. This witness did agree that the spreading or equalizing method of discharging effluent from the plant to the 54,000 square feet of percolation ponds could delay the entrance of nutrients to Old River by as much as five months. The petitioner produced a witness who was skilled in the operation and maintenance of wastewater treatment plants similar in design to that proposed by respondent Pilot Properties. This witness testified that this type of facility required greater operating time due to difficulties encountered by hydraulic imbalances on clarifiers and the upward flow of discharge. The witness had no knowledge as to the future operating plans of the respondent. The two respondents presented witnesses who were qualified as experts in the areas of design and construction of sewage treatment systems. Both witnesses had reviewed the subject permit application and were of the opinion that if the proposed plant is constructed as designed, it will meet the minimum treatment standards required by DER's statutes and rules. The application submitted by Pilot Properties was for the issuance of a construction permit. Among the conditions of the proposed issuance of such a construction permit is a requirement that the permitted obtain an operation permit sixty days prior to the expiration date of the construction permit. Prior to the issuance of an operating permit, the applicant must provide the Department of Environmental Regulation with four months of results of analysis and flow measurements. An operation permit is issued only to those facilities which are able to operate within the standards of DER's rules. If the plant does not properly operate, DER requires the necessary corrections and modifications to bring the plant into compliance. DER may also prohibit further hookups if the plant operates improperly.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to the Respondent Pilot Properties, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day March of 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 T. Michael Patterson, Esquire 26 East Garden Street Pensacola, Florida 32501 Robert T. Fulton General Counsel Pilot Properties, Inc. 664 Cherry Street Winter Park, Florida 32789 William Hyde, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.
Findings Of Fact Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.) Section 381.272(9) provides in relevant part: No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property. ENTERED this 21 day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21 day of June, 1991. COPIES FURNISHED: Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040 6200 Courtney Campbell Cswy. Tampa, FL 33607 Sonia Nieves District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
