Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about March 6, 1984, petitioner applied for a DER permit to construct a marina on state owned submerged land located in Punta Rassa, Lee County, Florida. The original design requested approval to build slips for 54 boats. This design was later modified to conform to suggested modifications made by DER staff. The modification reduced the size of the marina to 30 boat slips. By an Intent to Issue dated April 24, 1985, petitioner was advised that the DER intended to issue the permit with 17 special conditions. Special Condition Number 1 advised petitioner of the Florida law which states that construction on state sovereignty lands may not be commenced prior to receiving from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. In none of the 17 special conditions, nor in any other portion of the Intent to Issue, was it stated when the permit time would begin to run, or when it would expire. The expiration date of the proposed permit simply was not mentioned. The Intent to Issue did contain a standard "point of entry" notice, advising that a petition for a hearing could be filed and stating that the hearing process was designed to formulate agency action. Having no objection to the DER's Intent to Issue and the conditions thereof, the petitioner determined not to request an administrative hearing with regard to said Intent. On May 17, 1985, the DER issued to petitioner Permit Number 360836415. This permit included 15 general conditions and the same 17 special conditions that were contained in the Intent to Issue. In addition, the permit stated that it would expire on June 1, 1987. The permit was accompanied by a letter. Neither the letter, nor the permit, bore the stamp of the agency clerk or contained language advising petitioner of its right to petition for an administrative hearing or other "point of entry" language. DER never notified petitioner by any document that contained "point of entry" language that the permit time would begin running immediately and would expire on June 1, 1987. In order to obtain a sovereignty land lease from the Trustees of the Internal Improvement Trust Fund, petitioner was required to modify its proposed marina design by reducing the number of boat slips to 14. The Trustees approved the lease on or about July 29, 1986, although the Certification of Board Action attesting the Board's approval of the lease, as well as the sovereignty submerged land lease itself, was not forwarded to the petitioner until March 12, 1987. Due to the modifications required by the Trustees, the petitioner requested DER to modify its permit to reflect the reduction of the project scope. The request represented a minor modification to the permit and was granted by DER by letter dated September 30, 1986. The letter of modification does not suggest that the original expiration date of the permit had been changed. As of June 1, 1987, construction work on the proposed marina had not yet begun. The petitioner's agent relied upon a promulgated rule of the DER and assumed that the permit time would not begin to run on this project until petitioner had obtained consent to use state owned submerged land. DER's Dredge and Fill Application is encompassed in a form which is adopted by reference in Rule 17-1.203(1), Florida Administrative Code. This rule was adopted in 1982 and is still in effect today. A portion of that form, Appendix E, paragraph 3(g), on page 30, states that Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. (Emphasis supplied.) Except for this rule, DER has no other published instructions to applicants as to when permit times begin to run. Since the effective date of the Warren S. Henderson Wetlands Protection Act (Sections 403.91 - .929, Florida Statutes) in October of 1984, DER has not followed its policy outlined in Form 17-1.203(1), as adopted by rule. This contrary practice is based on DER's interpretation of the Henderson Act's failure to include language which was previously included in Section 253.124, Florida Statutes, to the effect that DER permits do not become effective until all other local, state and federal permits are issued. DER's internal practice that calculates the running of the permit time prior to receiving approval to use state owned submerged land is not the subject of any public notice, memorandum or instructions generally available to the public or permit applicants. DER does not require permittees to provide proof of submerged land consent subsequent to the issuance of the DER permit. Also, DER has no internal mechanism for regularly apprising itself of permits which are soon to expire. DER does process and grant time extensions of permits. Requests for time extensions are made through a simple written request, and DER will generally grant such requests if the subject permit is still valid. If the DER permit has already expired at the time that the request for an extension is made, DER requires a new permit application. In this case, petitioner did not request an extension at any time before June 1, 1987. As noted above, it was the belief of petitioner's agent that the two-year permit term would not begin to run until the required Trustee's consent was secured. It was not until June 23 or 24, 1987, that he learned that DER considered the permit to have expired on June 1, 1987. In July of 1987, petitioner did re-apply for a new permit, but DER had environmental objections to the issuance of a new permit. The petition initiating these proceedings was subsequently filed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order holding that Permit Number 360836415 does not expire until two years from March 12, 1987, and that appropriate recognition be given to the time which has elapsed due to the pendency of the instant proceeding. Respectfully Submitted and entered this 13th day of January, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1989. APPENDIX The Proposed findings of fact Submitted by the parties have been carefully considered and are accepted, incorporated and/or Summarized in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as an improper factual finding. Respondent 19. Last three Sentences rejected as contrary to the evidence. 21. Partially rejected due to the existence of Rule 17-1.203(1), Florida Administrative Code. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue in this case is whether the application of Respondents Falkner to transfer and modify a Water Use Permit should be approved.
Findings Of Fact The Southwest Florida Water Management District (District) is responsible for regulation and protection of water resources in the geographic area involved in this proceeding. Since 1994, John Falkner has owned the property in Hillsborough County which is the subject of this proceeding. The Falkner property is farmed by Christopher Falkner, the owner's brother. Prior to purchasing the land, the Falkners farmed the property, also known as the Rogers farm, through a lease arrangement with the previous owner. Rose Ann DeVito owns property to the south of the Falkner property. In the time since Ms. DeVito purchased the property, the elevation of Sumner Road has been raised and culverts were replaced. A fish farm was constructed in close proximity to her property. The result of this and other development has been to direct all the water flow from the surrounding area into the stream adjacent to the DeVito property. Drainage patterns in the area of Ms. DeVito's property have been altered since she first occupied the property. A ditch along Sumner Road which used to handle runoff from her property has been blocked by a neighbor's driveway. Maintenance on the ditch, allegedly a county responsibility, is described as poor. The ditch at the rear of Ms. DeVito's property handled water flow to Bullfrog Creek until the water flow became blocked, and the water diverted onto her property. The effect is that Ms. DeVito's property often contains a large amount of water. A substantial amount of sand is visible on her property, allegedly deposited by water flow. According to Ms. DeVito, both the county and the District have blamed the Falkner farm for the water-deposited sand. Charles and Diana Booth own property adjacent and to the south of the Falkner property. From 1992 to 1994, the Booths suffered from water running off the Falkner/Rogers farm and flooding the Booth property. A flood of the Booth property in the Fall of 1994 was not caused by irrigation but was related to a ten inch rainfall event at the Falkner farm. A ten inch rainfall exceeds a 25 year storm event and would likely result in widespread flooding. The Booths' pasture, top soil and driveway were eroded by the flooding. During the two years of flooding, Mr. Booth complained on several occasions about the flooding to the Falkners' foreman, "Cleo." The complaints were not relayed to Mr. Falkner. In October 1994, Mr. Booth reported the problem to the Southwest Florida Water Management District. Soon after the complaint was made, a representative of the District inspected the property and determined that a ditch needed maintenance. Shortly thereafter, the ditch was cleaned and a berm was installed to redirect runoff away from the Booth property. There has been no further flooding of the Booth property. In October 1995, Mr. Booth became concerned that a ditch was filling with sand and would not continue to handle the runoff. After voicing his concern, a water diverter was installed in the ditch and appears to have remedied the situation. At the time the Falkners began to lease the Rogers property, an existing water use permit, numbered 206938.01, had been issued and was valid for the farm. The Falkners have applied to transfer the existing water use permit from the previous property owner. The Falkners also seek to modify the permit, increasing the total quantities which can be pumped by transferring previously approved quantities from another permit the Falkners currently hold. All of the relevant wells are within the District's Most Impacted Area (MIA) of the Tampa Bay Water Use Caution Area. The District allows a permit holder within the MIA to increase withdrawals from a well by transferring the quantities from another permitted well within the MIA. The other Falkner farm (the "301 farm") from which the quantities would be transferred is located approximately one-half mile to the south of the Rogers farm and is within the MIA. The District reviewed the application and, on September 29, 1995, issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03. The proposed permit includes special conditions requiring monthly pumping reports, water quality reports, adherence to District irrigation allotments (irrigation levels established by the AGMOD computer model) and crop reporting. In reviewing the application the District utilized the criteria set forth in Florida Administrative Code, and the Basis of Review, incorporated into the code by reference. In order to obtain a Water Use Permit, an applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water. Additionally, the applicant must provide reasonable assurances that the water use: will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; will not adversely impact offsite land uses existing at the time of the application; will not cause water to go to waste; and will not otherwise be harmful to the water resources within the District. The uncontroverted evidence establishes that the water use is reasonable, beneficial and is in the public interest. The Falkners irrigate farmland to produce agricultural products. The production of food is in the public interest. The proposed use is reasonable and beneficial. Further, uncontradicted evidence and opinions of expert witnesses establish that the proposed use will not interfere with any existing legal use of water. The applicant must provide reasonable assurances that the water use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. The evidence establishes that pumping from the Falkner wells will not adversely affect the quality of water within the aquifers from which the water is drawn. Mr. Booth asserted that he is having water quality problems, specifically with rust in his well. The Booth well is approximately 25 years old. There is no evidence that the rust is related to the Falkner pumping. The DeVito and Booth wells draw from the Intermediate aquifer. Review of the potentiometric surface map of the intermediate aquifer indicates that there is a water level variation of 17 feet between the rainy and dry seasons. The result of the variance can be "dry" wells. There are two wells on the Falkner/Rogers property relevant to this proceeding. The first (District ID number 1) is 770 feet deep, is cased to a depth of 160 feet, and opens to the Floridan aquifer. The second (District ID number 2) is 1100 feet deep, is cased to a depth of 140 feet, and opens to the Intermediate and the Floridan aquifers. A cased well does not withdraw water from the formations through which the casing is placed. For example, a well cased to a depth of 160 feet draws no water from the top of the casing (at approximately ground level) to the bottom of the casing at 160 feet. The Intermediate aquifer releases water at a much slower rate than the Floridan aquifer. Based on the type and location of the Falkner wells, the vast majority of the water pumped by the Falkners comes from the Floridan aquifer. Impacts on existing wells are calculated through computer modeling. The "MOD" flow model demonstrates impacts that will occur after 90 days of pumping at peak month levels with no recharge to the aquifer. The MOD flow model results in a conservative "worst case" projection. The MOD flow model calculation projects the drawdown at Falkner well number 1 to be approximately .9 feet. The MOD flow model calculation projects the drawdown at Falkner well number 2 to be approximately 1.4 feet. The MOD flow model calculation projects the drawdown at the Booth well to be approximately one-half foot. The impact on the DeVito well will not exceed that projected at the Booth well. District permitting criteria allow for projected MOD flow model drawdown impacts of less than five feet at existing wells. The impact possible after approval of this application falls well within the District's guidelines. The impact of pumping if the application at issue in this proceeding is approved will result in a maximum variation of one-half foot at the Booth well. The evidence fails to establish that any problems related to water quantity encountered by the Booths are related to agricultural pumping at the Falkner farms. The evidence also establishes that, based on the existing retention and drainage system, the proposed use will not adversely impact surrounding surface water bodies. A system of swales and ditches is utilized to retain the water on the farm property. The evidence fails to establish that runoff from the Falkner/Rogers farm will adversely impact surrounding surface waters if this application is approved. The applicant has provided reasonable assurances that the water use will not adversely impact offsite land uses existing at the time of the application. The evidence establishes that the runoff from the Falkner farm does not discharge directly to the stream at the rear of the DeVito property. Other agricultural property discharges into the stream adjacent to the DeVito property. There is a steady waterflow through the stream at all times, whether or not the Falkner pumps are operating. Ms. DeVito's property consists of Myakka soil, which has little capacity to absorb rainfall and generates large amounts of runoff. The altered drainage patterns in the area have resulted in substantial water on her property. The evidence in insufficient to establish that the Falkner farm pumping has resulted in flooding on Ms. DeVito's property. The evidence fails to establish that approval of the application at issue in this proceeding will cause adverse impact to the DeVito property or will result in water quality or quantity problems. The Booths are concerned that the existing drainage system will not be maintained and that increased pumping will result in their land being flooded again. The evidence fails to establish a substantial likelihood that the Falkner farm drainage system will not be maintained. The applicant has provided reasonable assurances that the water use will not cause water to go to waste. The Falkners use a semi-enclosed seep irrigation system at the Rogers farm. Irrigation is only used when necessary. Mushroom compost, humates, and plastic mulch retain moisture in the soil. A special condition of the permit requires the Falkners investigate the feasibility of tail water recovery and reuse. The applicant has provided reasonable assurances that the use will not otherwise be harmful to the water resources within the District. The permit application results in no increased withdrawal of water than is allowed under the existing permits for the Rogers and the "301" farms.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Southwest Florida Water Management District enter a Final Order granting the Falkner application and issuing permit number 206938.03. DONE and ENTERED this 26th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 26th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-5763 and 95-5764 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners Booth The Petitioners Booth proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as irrelevant or not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein. Respondents The Respondents' joint proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, cumulative. 28-29. Rejected, subordinate. 33. Rejected, subordinate. COPIES FURNISHED: Rose Ann DeVito, pro se 11001 Sumner Road Wimauma, Florida 33598 Diana P. and Charles B. Booth, pro se 10812 Sumner Road Wimauma, Florida 33598 Patricia Petruff, Esquire Dye and Scott, P.A. 1111 Third Avenue West Bradenton, Florida 34206 Martin Hernandez, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing relating to the issue of jurisdiction, the following relevant facts are found: On or about March 28, 1979, respondents T.V. Rodriquez and Trafalgar Developers of Florida, Inc. filed with the Department of Environmental Regulation an application for a permit to conduct dredge and fill activities on a 2.3 acre area located within a 495 acre planned unit development in Orlando. The 2.3 acre tract is located in a cypress swamp area in the northeast portion of the development site. The application sought authority to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert, and to backfill the installed pipe with 3,000 cubic yards of fill material. All of the construction activity was to be confined to the 2.3 acre tract which, as noted above, was a cypress swamp area interior to the project boundaries. While there were no other property owners immediately adjacent to the cypress swamp upon which the dredging and filling was to occur, the applicants did provide for notification purposes the names of two property owners which were the closest, although not adjacent, to the proposed project site. Neither the petitioners nor the intervenors in this proceeding were among the two names provided. The Department of Environmental Regulation reviewed the application and, on April 5, 1980, requested further infor- mation. Upon receipt of this information, an employee of DER, Jim Morgan, conducted a field inspection of the dredge and fill site on May 10, 1979. It was Mr. Morgan's conclusion that the proposed project would result in the elimination of approxi- mately three percent of the wetlands associated with the eastern boundary of the 495 acre development, and would not significantly impact the remaining portion of the wetland community. Mr. Morgan recommended that the application be approved, with two specific conditions. One condition pertained to the containment of turbidity at the project site if the site is inundated during construction. The other condition pertained to a proposed swale for outfall of a planned ditch system for the drainage of the 495 acre planned unit development. On May 18, 1979, the Department of Environmental Regulation issued Permit No. 48-18682-4E to respondents to excavate 2,000 cubic yards of material for the installation of a five foot diameter drainage culvert and to backfill the installed pipe with 3,000 cubic yards of fill material suitable for use as-a golf course foundation. The permit contained the specific conditions recommended by Mr. Morgan. Specific Condition Number 1 reads as follows: "(1) The drainage plan for this proposed 495 acre planned unit development will require the lowering of the water table via way of a planned ditch system, thus making development feasible. This ditch system will ultimately [sici discharge to an existing county canal via way of a proposed swale, which is exempt from this department's per- mitting pursuant to Chapter 17-4.04(10)(k). A swale conveys water only during and immediately after the advent of a storm. This installation must conform to this explicit definition, otherwise, additional dredge and fill permits will be required, including the entire development's drainage facility. Upon completion of the development, this department shall be notified and periodic inspections will be performed by the department's staff to determine if the outfall conforms with the definition of a swale." By letters to DER dated August 20, 1979, the petitioners herein stated that they had just been informed on August 17, 1979, of the issuance of the subject permit to the respondents. Their original letters to the DER, as well as their amended and restated petition, claim that, as owners of property located adjacent to the property upon which the drainage project would be conducted pursuant to the subject permit, they were entitled to notice prior to the issuance of the permit and that their substantial interest will be affected by the drainage project authorized by said permit. The petitioners Frances Bandy and Charles R. Bandy own Lot 14 in Golden Acres which is a considerable distance from the 2.3 acre tract upon which respondents are permitted to conduct dredging and filling activities. The petitioners Anna and Lee Rowe and Fay M. Handy own Lots 20 and 21 in Golden Acres, as well as a five acre lake. These lots and lake are even further from the permitted dredge and fill site. None of the petitioners own property which is adjacent to the permitted 2.3 acre site. Betty J. Hardy, Wayne Hardy and Vista Landscaping Inc. moved to intervene in this proceeding by motion dated March 5, 1980. An amended motion to intervene was filed on March 17, 1980, adding Julian T. Hardy as a named party intervenor. The intervenors own and have a business interest in property located a considerable distance south of the permitted 2.3 acres. The intervenors conduct a wholesale nursery business on their property. Their complaint lies with the effect that the proposed drainage of the entire 495 acre development and the alleged drainage ditch located on property contiguous to their property will have on their property and business interests. As of the time of the hearing on March 18, 1980, construction pursuant to the permit issued on May 18, 1979, was approximately ninety-five percent (95 percent) complete.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioners request for an administrative hearing pursuant to Section 120.57(1) be dismissed, with prejudice, for lack of jurisdiction. Respectfully submitted and entered this 22nd day of April, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Cleatous J. Simmons Lowndes, Drosdick and Doster Post Office Box 2809 Orlando, Florida 32802 Roger D. Schwenke Carlton, Fields, Ward, Emmanual, Smith and Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Stanley J. Niego Office of General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue for consideration in this case is whether the Respondent, Hi Hat Cattle and Grove, should be issued water use permit 204387.03, to withdraw groundwater from the wells on its property, and if so, in what amount and under what conditions.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for the permitting of consumptive water use within its area of geographical jurisdiction. The Respondent, Hi Hat, is a family owned farming and ranching operation in eastern Sarasota County with water wells on its property. The Intervenor, City of Sarasota, is a municipality in Sarasota County which operates wells in the general area of those operated by Hi Hat, and which has an agreement with Hi Hat for the latter's use of treated wastewater pumped from the city's treatment plant to Hi Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and resident of Sarasota County whose property is located near the Hi Hat Ranch, and whose potable water is drawn from a well on his property which utilizes both the surficial and intermediate aquifers which are penetrated by the wells on Hi Hat Ranch. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove, the family owned business which operates it, and an additional 3,227 acres leased from the City of Sarasota. Agricultural operations, including citrus farming, truck farming, sod farming, and grazing have been conducted on the ranch since the mid 1940's. In February, 1990, Hi Hat applied to the District for a permit to withdraw and use water from some 14 wells located on its property. It requested an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate of 32, 668,000 gpd. Upon receipt by the District, the application was assigned a number, (204387.03), and was submitted for evaluation by the District staff for conformity with applicable District rules and policies. When the staff evaluation was completed, the District issued a staff report and proposed staff agency action in which it indicated its intention to issue a permit authorizing water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd. In conducting its evaluation, the District staff relied upon the District's Basis of Review For Water Use Permit Applications which contains within it the provision for use of a "water use model" in assessing the need and appropriateness of water withdrawal amounts. This model, known as the Blaney- Criddle Model considers numerous factors in the evaluation, including rainfall, soil characteristics, irrigation methods used, and proposed crop types, all in an effort to determine a reasonable estimate of the applicant's supplemental water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a Hydrologist III employed by the District, and an expert in hydrology, who has, over the years, reviewed between 350 and 400 permit applications, of which approximately 90 percent have been for agriculture. She is, therefore, quite familiar with the specifics of agricultural water use needs. Her evaluation of Hi Hat's application was done in the same manner as the others she has done and utilized the same tests, measurements and factors for consideration in arriving at her conclusion. In its application, a renewal with modification sought to increase average annual quantities due to a change in crop plans, Hi Hat indicated that its criteria for water use was based on certain agricultural uses and application rates. These included: low volume under tree spray irrigation of 778 acres of citrus at an application rate of 17.2 inches/year plus one inch/year for frost and freeze protection. open ditch irrigation of 135 acres of sod at an application rate of 30 inches/year. open ditch irrigation of 1,367 acres of improved pasture at an average application rate of 26.6 inches/year. overhead spray irrigation of 1,200 acres of improved pasture at an application rate of 20.3 inches/year. open ditch irrigation of 110 acres of spring peppers at an application rate of 30.0 inches/crop, and open ditch irrigation of 110 acres of fall peppers at an application rate of 45.2 inches/crop. Applicant also stipulated that the peak monthly quantities that it requested would be utilized for pasture, sod and citrus irrigation during the month of May. The proposed maximum quantities were for frost and freeze protection of citrus only. In January, 1989, Hi Hat entered into a contract with the City of Sarasota under which the City was obligated to deliver reclaimed water from its wastewater treatment plant to a "header" located on the ranch which thereafter distributes the water through pipes to "turnouts" located at various high points on the property. From these, the water is then discharged into a system of ridges and furrows for distribution of the water across the needed area. The reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The Contract provides for minimum and maximum amounts of water to be delivered as well as for water quality standards which must be met. In periods of adequate rainfall, when irrigation is not required, any treated wastewater which is not needed is stored in a 185 million gallon holding pond on City property located adjacent to the ranch. When needed, water can be fed into the wastewater distribution system described above from the holding pond. This reclaimed water, whether from the pond or direct from the header, can also be utilized to irrigate citrus crops, but this requires a filter system which has not yet been able to operate properly. Therefore, no reclaimed water has yet to be utilized for citrus irrigation on the ranch. At an average annual flow of 6.2 million gallons per day, the pond has the capacity to hold enough treated water for almost 30 days. Not all wells on Hi Hat Ranch are active wells. Several of the wells are classified as standby wells which are intended to be used only to back up the reclaimed water delivery system and are located, normally, beside the "turnouts." In the event the reclaimed water is not available from the city, the standby wells can be utilized to provide water to the ridge and furrow system used to irrigate pasture land. The standby wells are numbers 1, 6, 7, 11, 13, 14, and 15. Well number 5, also identified as a standby well in the staff report and in the draft permit was mistakenly so identified. The draft permit contains several special conditions which impact on the drawing of water under the terms of the permit. Significant among these is Special Condition 33 which prohibits the withdrawal of water from any of the standby wells unless the reclaimed water supply from the city is interrupted. Special Condition 27 requires the installation of a flow meter on any standby well that becomes active as a result of permanent discontinuance of the reclaimed water supply. With regard to flow meters, Special Condition 22 requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated this was in error and has recommended that the standby wells be deleted from that Special Condition. When that is done, only those wells actively producing water on a regular basis would require the installation of flow meters. In its analysis of the application for permit, the District staff considered several factors pertinent to the impact the well would have on the water supply in the area and its effect on other users. These factors include hydrologic impacts, well condition, the history of water use at the ranch, the reliability of the reclaimed water system and its ability to provide a uniform source, and the city's water reuse policy. Addressing each individually, and starting with the hydrologic impact of the withdrawal of the requested amounts, the District considered the nature of the existing wells and how they are constructed and maintained. The District assumed, because the data regarding the construction of the existing wells was incomplete and insufficient to properly disclose the status of casing on each well, that they were shallow cased. As a result, the calculations incorporating this assumption indicate a situation that would occur in its most aggravated form. The parties agreed that Hi Hat's wells are shallow cased and probably go no deeper than 90 feet. To determine, as much as possible, the projected drawdowns in the surficial and intermediate aquifers that might be expected if Hi Hat withdrew the amounts of water proposed, the District utilized the "MODFLOW" computer model which factors in simultaneous peak withdrawals from all 14 of the wells along with a 90 day no rainfall drought condition. This, too, contributes to a worst case scenario, and the resultant figures are considered to be conservative estimates of the hydrologic impact of the water withdrawal. Notwithstanding, the application of this computer model resulted in the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's property located approximately one half mile from the ranch border, would be no more than .055 feet. Since normal fluctuations in the surficial aquifer during the course of the year can be as much as 6 feet, the projected drawdown as a result of Hi Hat's withdrawals was considered insignificant. Applying the same assumptions and utilizing the same computer model as it relates to the intermediate aquifer resulted in an indication of a drawdown of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in the intermediate aquifer can range from 15 to 20 feet normally, the District considers that any reduction of less than five feet in the intermediate aquifer is insignificant. The permit held by Hi hat currently allows for the withdrawal of more water than would be withdrawn under the proposed permit as conditioned and is consistent with the proposed reduction in allowable withdrawals. Considering that factor, as well as the prohibition against withdrawals from standby wells as long as reclaimed water is available, the actual impact of the water withdrawals consistent with the proposed permit would be substantially less than the computed prediction which includes production from all wells. Drawdown contours are defined across the entire effected area. One of the levels is a 4 foot contour, and when a computer simulation indicates that the 4 foot contour includes a withdrawal previously or otherwise permitted, the District will generally conduct a cumulative impact analysis. In this case, however, since there was only one golf course well within the area circumscribed by the 4 foot contour line, and since this withdrawal was too small to have effected an evaluation, it was not done. The condition of the wells on the Hi Hat Ranch has some bearing on whether or not the application for additional withdrawal of water should be granted. These wells are almost 30 years old, having been drilled in the 1960's. As a result, there is little information available regarding their construction detail. This is not necessarily unusual for agricultural wells, and there is evidence that there are many similar wells in use within the District. The reason for this is that at the time the wells were drilled, information regarding their depth, casing and other matters were not required to be kept or reported. However, there is no indication the wells are in any way violative of well construction criteria and their use has been authorized continuously since 1977. When he prepared Hi Hat's application, Mr. Turner included much the same information regarding the wells as pertains as to depth and diameter which he had previously submitted in earlier applications and which had been accepted. In each case, casing depths had been reported as unknown. Notwithstanding the information contained in some old well logs relative to only a few of Hi Hat's wells, this information is in no way definitive and it is difficult to describe anything specific with the majority of these wells. Nonetheless, as already found, it is stipulated that most are approximately 90 feet deep. It is reasonable to assume that the existing wells, however, are cased only to a shallow depth, and that in many cases, the existing casings have corroded away, either totally or in part. This can cause an intermixing of water from the separate aquifers, but whether this is in fact happening depends upon factors specific to that particular well. Petitioner did not present any evidence to show that as a result of the condition of Hi Hat's wells, any degradation is occurring in the more potable, surficial aquifer as a result of intermixing with water from the intermediate aquifer on or around the Hi Hat Ranch. In Ms. Jackson's opinion, and there appears to be no evidence to contradict it, the amount of drawdown which would occur as a result of maximum pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water from the Floridan aquifer to percolate upward (upcone) into the better quality water of the two upper aquifers even during drought conditions. By the same token, there is no evidence that drawdown would encourage or permit salt water intrusion. Petitioner attempted to show by the records kept on the various Hi Hat wells that many of them have been abandoned and are no longer operative and should not be allowed to fall within the parameters of this permit. He testified clearly that over the years, the level of water in his potable water well has lowered and presumed that this was the result of increased water usage by other entities which draw from the aquifer into which his well is sunk. Water level, however, depends upon numerous factors, of which usage is only one. Others include recharging of the aquifer and the amount of rainfall and other recharge sources not only in the immediate area but across the large area which feeds the aquifer. Mr. Bishop did not present any evidence showing a causal connection between the lowering of the water in his well, or the degradation in water quality he claims to have experienced, and either the drawdown caused by Hi Hat's operation or by aquifer intermixing. He indicated, and it is not disputed, that within the past year, he has had to take measures to improve the water quality in his potable well, but, again, he has not presented any evidence to show this was caused by Hi Hat's ground water withdrawals. In its long range planning, the District intends to implement a program to rehabilitate old wells, and when that program is implemented, almost every agricultural well within the District may require recasing or redrilling. This program will not be implemented for several years, however. In an effort, however, to insure that all reasonable precautions are taken to see that approval of any petition for withdrawal does not have an unacceptable adverse impact on the water needs of the surrounding community, in its analysis of this application, and in all cases, the District makes certain assumptions when adequate empirical data is not available. In this case, pertaining to the unavailability of information regarding Hi Hat's wells, the District assumed that all wells were shallow cased, and this placed the application in the worst possible light. Shallow cased wells allow more upconing and aquifer intermixing. Nonetheless, the amount of water permitted to Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's use of additional water as a result of a possible change to their permitted quantities. However, to compensate for this, the District has also included a special condition, (#26), which requires Hi Hat to log all 14 of its wells within the term of the permit, (7 years), which will require at least 2 wells be done each year. The cost of that action will be between $800 and $2500 per well. Another condition, (#31), requires Hi Hat to look into any complaint from adjacent property owners regarding adverse impacts due to water withdrawal, to report the results of its inquiry to the District, and to mitigate, as much as possible, all adverse impacts due to its withdrawal. Mr. Bishop claimed, and introduced evidence purporting to demonstrate, that many of the wells on the Hi Hat Ranch, which are covered by the permit applied for here, are no longer in use and have been abandoned. In response, Mr. Turner, who has been actively engaged in the ranch's operations for at least the past four years, indicates from his personal knowledge, that all 14 wells included in the permit applied for have been operated within the past two years, and all are capable of producing water. It is so found. Not all wells, however, have been operated at all times. Crop rotation and a varying need for groundwater has resulted in some wells not being used at some times. This is, of course, commonplace in agriculture and to be expected as a result of crop planning programs. Admittedly, an accurate figure for the amount of water which has been withdrawn from the 14 wells cannot be established because these wells do not have, and were not required to have, flow meters. Two of the wells were fitted with hour meters in January, 1989, but because the capacity of the pumps on those wells is variable, a precise estimate of volume pumped cannot be determined. The meters measured only the number of hours the pumps were in operation and not the amount of water passed through the pumps. Evidence was presented, however, to show that wells have been utilized at the ranch since the 1960's, and in 1977, some 14 years ago, following District implementation of a consumptive water use permit program, the ranch first applied for water withdrawal permits. These permits have been renewed as required and all water usage since the implementation of the program has been permitted. Turning to the reclaimed water supply, the delivery system, incorporating a program to pump reclaimed water from the treatment plant all the way back out to the ranch site, is subject to material failure and operator error, and either one can occur at any number of places along the system route. Each could result in interruption of the delivery of the reclaimed water to the ranch. The system is far more complex than would be the use of on-site wells for delivery of ground water. One two week shutdown in the system was occasioned by a major pipe failure as a result of pressure building up in the pipes. Were it not for the fact that a contractor was already at the ranch with replacement parts on hand to effect expeditious repair of the system, the shutdown could have lasted considerably longer than it did. This is not the only interruption, however. Several main line leaks and valve problems have caused the system to be shut down on several occasions for short periods of time. The filter system required for the water destined for the citrus area is problematical, and so far this area of the ranch has not received any reclaimed water in the 10 months the system has been in operation. Mr. Bishop argues that the wet weather holding pond is a solution to the reliability problems with the pipe line, but the pond has had problems of its own. Sand in the water, which comes from the holding pond, has been the primary difficulty in the filter system for the citrus area, and algae growth in that pond has the potential to create other filter problems. Delivery of the water from the pond is not accomplished by a gravity system, but instead, requires the use of pumps powered by an electric motor. In the event of a power failure, this source would be unavailable. Discounting all of the above, however, and assuming, arguendo, that all systems were in top operating condition, the fact remains that the delivery system from the pond to the distribution system is not adequate to supply the amount of water that would be necessary to have an effective freeze protection program. In any case, the reclaimed water supply is not the panacea for all water shortage problems experienced at Hi Hat Ranch. In the first place, the quality of the reclaimed water is generally lower than that of the groundwater which would come from wells on the ranch. Also, the City's treatment process does not remove from the water all the pollutants that are of concern to the farm operators. For one thing, total dissolved solids in the reclaimed water are considerably higher than in the ground water, and high dissolved solid levels can be harmful to citrus crops. In fact, the Institute of Food and Agricultural Sciences recommends that citrus irrigation water not exceed total dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl). Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged between 1200 and 1500 mpl. Though within recommended parameters, it was toward the high end. Further, reclaimed water is not totally interchangeable with ground water for all agricultural purposes. It cannot, by law, be applied to certain types of ground crops such as melons, nor can it be used for overhead citrus irrigation. There is also a restriction on the use of reclaimed water for pastures on which dairy cattle will be grazed. This all results in a restriction on the options available to the farmer who chooses to use reclaimed water in his irrigation plan. As a result, many farmers try not to use reclaimed water if they have access to adequate amounts of groundwater from on- site wells. Notwithstanding all the above, the parties agree that the use of reclaimed water for irrigation purposed is in the public interest. The District encourages it but nonetheless concedes that even with the availability of reclaimed water, a farmer should have access to wells on his property, in a standby capacity, as an alternative source of water to support his farming activities. Not only that, the agreement between the City and Hi Hat provides for Hi Hat to maintain its water use permit even while receiving reclaimed water from the City. Hi Hat is not the only farm operation with whom the City has negotiated in a effort to expand its wastewater distribution program. It has found in those negotiations, that most farm producers are not willing to rely totally on reclaimed water for all their irrigation needs, and it has concluded that were it mandatory that a farmer give up his on-site ground water withdrawals in order to utilize reclaimed water for a part of his needs, most would be reluctant to use it at all. This would seriously interfere with the City's ability to dispose of its surplus reclaimed water consistent with its policy. Even though Hi Hat's property lies within the Eastern Tampa Bay Water Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat because Hi Hat filed its application for permit, which was deemed complete, prior to the adoption of the rule. Nonetheless, water use officials agree that the proposed permit is consistent with the rule emphasis on the use and reuse of reclaimed water, and the District does not object to backup wells being permitted as supportive of the District's desire to keep ground water within the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No. 204387.03, within the limits of the authorized quantities as indicated in the intent to issue, subject to conditions contained therein; except that the permit be amended to show well No. 5 as a non-standby well, and to delete standby wells from the terms and requirements of Special Condition 22. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted Accepted and incorporated herein. Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 11. Accepted. - 15. Accepted and incorporated herein. Accepted. Accepted. & 19. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. She testified that Condition 28 of the permit provides this. Accepted. Accepted. Accepted and incorporated herein. Accepted. & 36. Accepted. Rejected as not supported by the evidence except that the method permitted was the method being used. - 40. Accepted. Ms. Jackson indicated she "assumed" some wells were drilled into the Florida aquifer. Rejected. Accepted as qualified by the comment, "depending on the respective potentiometric heads." - 47. Accepted. Accepted but incomplete. This is because they did not feel it was necessary under the circumstances. - 51. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. Redundant. - 61. Accepted. - 66. Accepted and incorporated herein. Accepted. More a restatement of testimony than a Finding of Fact Accepted and incorporated herein. & 71. Accepted and incorporated herein. - 74. Accepted. Accepted. First sentence accepted. Second portion rejected since cited case involves active wells versus standby, as here. The comparison made is accepted. The conclusion drawn as to validity is rejected. & 79. Accepted. FOR THE RESPONDENTS AND INTERVENOR: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 33. Accepted and incorporated herein. 34. - 37. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. - 42. Accepted and incorporated herein. Accepted and incorporated herein, & 45. Accepted. 46. & 47. Accepted and incorporated herein. COPIES FURNISHED: Wyatt S. Bishop 5153 Tucumcari Trail Sarasota, Florida 34241 Bram D.E. Canter, Esquire Haben, Culpepper, Dunbar & French, P.A. 306 N. Monroe Street Tallahassee, Florida 32301 Edward B. Helvenston, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara B. Levin, Esquire de la Parte & Gilbert 705 East Kennedy Blvd. Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Based upon the stipulated facts of the parties, as filed with the Division of Administrative Hearings on December 14, 1987, the following relevant facts are found: 1/ On October 31, 1985, the DER received from Agrico dredge and fill Application No. 531120329. On May 8, 1986, the DER sent to Agrico a Notice of Completeness indicating that Application No. 531120329 was complete as of April 24, 1986. On July 22, 1986, J. W. Landers, Jr. executed on behalf of Agrico a Waiver of 90 Day Time Limit, indicating that the waiver expired on August 1, 1986. On or about July 28, 1986, DER personnel discussed with Agrico representatives the possible withdrawal of Application No. 531120329 as one of the conditions for the issuance of a permit for Application No. 531093999. The DER failed to take action to approve or deny Application No. 531120329 on or before August 2, 1986. On August 12, 1986, the DER issued Permit No. 531093999. On August 23, 1986, Booker Creek Preservation, Inc. and Manasota-88, Inc. filed a Motion to Intervene Into Ongoing Environmental Licensing Proceeding and Petition For Formal Administrative Proceeding challenging the Department's issuance of Permit No. 531093999 and rendering that Permit to the status of intended agency action. This proceeding was assigned DOAH Case No. 86-3618. DOAH Case No. 86-3618 was scheduled for hearing on April 28-30, 1987. By letter date March 2, 1987, Agrico withdrew Permit Application No. 531093999. On May 8, 1987, the DER sent to Agrico a letter directing Agrico to publish public notice of the DER's intent to issue Permit No. 531120329 pursuant to Section 120.60(2), Florida Statutes. On May 26, 1987, the DER received from Agrico a letter indicating that the public notice was published as required. Manasota-88, Inc. timely requested an administrative hearing challenging the proposed issuance of Permit Number 531120329.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that Permit Number 531120329 be issued to Agrico Chemical Company as of August 2, 1986, and that the petition filed by Manasota-88, Inc. challenging this permit be DISMISSED. Respectfully submitted and entered this 18th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988.
The Issue The issue presented for decision in this case is whether Respondent, the Southwest Florida Water Management District (the "District"), should issue Water Use Permit ("WUP") No. 20005687.003 to Dr. Thomas E. Kelly, pursuant to the terms of the proposed permit issued on April 11, 2001.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioner Becky Ayech is a resident of Sarasota County and a citizen of the State of Florida. The District is a water management district in the State of Florida created pursuant to Section 373.069(1)(d) and (2)(d), Florida Statutes. The District is the governmental agency charged with the responsibility and authority to review and act upon water use permit applications, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code. Dr. Thomas E. Kelly is the owner of the real property in Sarasota County on which Pop's Golf and Batting Center is located, and as such is recognized as the applicant for and holder of any WUP issued for the property. Pursuant to a 50- year lease with Dr. Kelly, Ralph Perna owns and operates Pop's Golf and Batting Center and is the person who would be responsible for day-to-day compliance with the terms of the WUP at issue. Neither Dr. Kelly nor Mr. Perna formally intervened in this proceeding. THE PROPOSED PERMIT The proposed permit is for irrigation and sanitary uses at a golf driving range and batting cage facility called Pop's Golf and Batting Center, on Fruitville Road in Sarasota County. The site leased by Mr. Perna comprises approximately 30 acres, of which the westward 15 acres is taken up by the Pop's facility. The eastern 15 acres is heavily wooded, overgrown with brush, and contains a five-acre lake. The majority of the 15 acres used by Pop's is taken up by the landing area for the driving range. Near the front of the facility are a tee box and putting green sown with Bermuda grass. This grassy area, about six-tenths of an acre, is the only part of the 30-acre property requiring irrigation, aside from some landscape plants in front of the business office. The landing area is not watered and is not even set up for irrigation. The Pop's facility is in a low-lying area historically prone to flooding. For this reason, the tee box, putting green, and business office are elevated about two and one-half feet higher than the landing area. This elevation also serves the esthetic purpose of allowing golfers to follow the flight of their drives and watch the balls land. The proposed WUP is a renewal of an existing permit. The existing permit is premised on the property's prior use for agriculture, and permits withdrawals of 34,000 gpd on an average annual basis and 99,000 gpd on a peak monthly basis. The renewal would authorize withdrawals of 1,700 gpd on an average annual basis and 4,400 gpd on a peak monthly basis, reductions of 95 percent and 96 percent, respectively. "Average annual" quantity is the total amount of water withdrawn over the course of one year. This quantity is divided by 365 to arrive at the allowable gallons per day. "Peak monthly" quantity is the amount of water allowed to be withdrawn during the driest month of the year. This quantity is divided by 30 to arrive at the allowable gallons per day. Pop's draws water from two wells on the property. A six-inch diameter well, designated District Identification No. 1 ("DID 1"), is used for irrigation of the tee box and putting green. A four-inch diameter well, designated District Identification No. 3 ("DID 3"), is used to supply water to the two restrooms at the facility. THE PERMIT CONDITIONS The proposed WUP includes the following basic information: the permittee's name and address; the permit number; the date the permit application was filed; the date the permit was issued; the expiration date of the proposed permit; the property location; the quantity of water to be permitted; the withdrawal locations; and the water use classification proposed pursuant to the District's permit application. The District's permit application provides the applicant with the following five choices regarding proposed water use: Public Supply; Industrial or Commercial; Recreation or Aesthetic; Mining or Dewatering; and Agriculture. The proposed permit in this case has been classified as Recreation or Aesthetic. The proposed WUP would allow the permittee to withdraw from DID 1 an average of 1,600 gpd, with a peak monthly withdrawal of 4,200 gpd, and to withdraw from DID 3 an average of 100 gpd, with a peak monthly withdrawal of 200 gpd. The proposed WUP contains four Special Conditions. Relevant to the issues raised in this proceeding, Special Condition No. 3 requires the permittee to incorporate best water management practices, to limit daytime irrigation to the greatest extent practicable, to implement a leak detection and repair program, to conduct a system-wide inspection of the irrigation system at least once per year, and to evaluate the feasibility of improving the efficiency of the current irrigation system. Special Condition No. 4 requires the permittee to submit a conservation plan no later than April 30, 2006. The plan must address potential on-site reuse of water and external sources of reuse water. The proposed WUP also contains 16 Standard Conditions. Standard Condition No. 2 reserves the District's right to modify or revoke the WUP following notice and a hearing, should the District determine that the permittee's use of the water is no longer reasonable and beneficial, consistent with the public interest, or if the water use interferes with an existing legal use of water. Standard Condition No. 3 provides that the permittee may not deviate from the terms of the WUP without the District's written approval. Standard Condition No. 4 provides that, if the District declares a water shortage pursuant to Chapter 40D-21, Florida Administrative Code, the District may alter, modify, or declare inactive all or any part of the proposed WUP as necessary to address the water shortage. Standard Condition No. 5 provides that the District will collect water samples from DIDs 1 and 3, or require the permittee to submit water samples to the District, if the District determines there is a potential for adverse impacts to water quality. Standard Condition No. 9 provides that the District may require the permittee to cease or reduce its withdrawals if water levels in aquifers fall below minimum levels established by the District. Standard Condition No. 11 provides that the District may establish special regulations for Water Use Caution Areas ("WUCAs"), and that the permit will be subject to such regulations upon notice and a reasonable period to come into compliance. Standard Condition No. 12 requires the permittee to install flow metering or other measuring devices to record withdrawal quantities, when the District deems it necessary to analyze impacts to the water resource or existing users. CONDITIONS FOR ISSUANCE OF PERMIT Generally, the miniscule withdrawals proposed by Pop's would not fall within the District's permitting authority, which mostly confines itself to withdrawals of 100,000 gpd or more. However, Rule 40D-2.041(1)(c), Florida Administrative Code, requires a permit for any withdrawal from a well having an outside diameter of six inches or more at the surface. DID 1 has an outside diameter of six inches. An applicant for a WUP must demonstrate that the proposed use of water is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances on both an individual and a cumulative basis that the proposed use of water satisfies the 14 specific conditions set forth in Rule 40D-2.301(1)(a)-(n), Florida Administrative Code, identified in the subheadings below. Necessary to Fulfill a Certain Reasonable Demand Pop's is open for business twelve hours per day. During the summer months, it averages 100 customers per day. The tee box and putting green at Pop's are heavily used. When golfers hit balls from the tee box, they make small gouges, or divots, in the Bermuda grass. These divots are later filled with sand, and the grass naturally grows over them. Irrigation is essential to the health of the Bermuda grass, allowing the application of fertilizer and chemicals to treat for pests and fungus. The tee box and putting green are watered as little as possible, because over-watering can itself lead to fungus problems with the Bermuda grass. The District uses an irrigation allocation computer program called AGMOD to determine reasonable average annual and peak monthly quantities for irrigation in an objective and consistent manner. Data on the pump capacity, soil type, the area to be irrigated, and its geographic location are input, and AGMOD allocates a quantity of water sufficient to irrigate for the driest 20 percent of the time, based on 75 years of historic rainfall data. The AGMOD program allows quantities for irrigation of the fairways of a typical golf course; however, Pop's does not have fairways and thus the proposed permit does not authorize any water for such irrigation. The District's expert, David Brown, credibly testified that the amounts allocated under this permit are conservative because the area to be irrigated is a high traffic area, because the irrigation methodology employed by Pop's ensures that 75 percent of the water withdrawn from DID 1 will get to the grass, because of the fertilizers and chemicals necessary to maintain and repair the grass, and because of the elevation of the area to be watered. Mr. Brown testified that the AGMOD model uses native soil types, not the fill used to elevate the tee box and putting green, and therefore the soil for the elevated areas will likely require more water and drain more quickly than AGMOD indicated. The quantities allocated for withdrawals from DID 3 on an average annual and peak monthly basis are necessary to fulfill the demand associated with the use of the two restrooms by Pop's employees and customers. In summary, the amounts of water authorized for withdrawal under the proposed permit are no more than necessary to fulfill a certain reasonable demand. Quantity/Quality Changes Adversely Impacting Resources The evidence at the hearing established that the operation of DIDs 1 and 3 pursuant to the terms of the proposed WUP will cause no quality or quantity changes adversely impacting the water resources. The proposed withdrawal amounts constitute a decrease of 95 percent on an average annual basis and of 96 percent on a peak monthly basis from the existing permit. The District reasonably presumes that decreases in permitted withdrawal amounts will not cause quantity or quality changes that will adversely impact the water resources. Nonetheless, Mr. Brown performed groundwater modeling to confirm that the District's presumption was correct in this case. The first step in model development is to study the geology at the site being studied. Mr. Brown looked at detailed information from surrounding WUPs and geographic logs to arrive at a "vertical" view of the stratigraphic column in place at Pop's, giving him an idea of which zones below Pop's produce water and which zones confine water and impede its movement between the producing units. Mr. Brown then looked to site-specific aquifer test information from other permits to give him an idea of the "horizontal" continuity of the system across the area under study. The hydrogeologic profile at Pop's contains five different aquifer production zones separated by confining units of clay or dense limestone. Moving downward from the surface, the production zones are the surficial aquifer, zones called Production Zone 2 ("PZ-2") and Production Zone 3 ("PZ- 3") within the intermediate aquifer, and the Suwannee limestone and Avon Park limestone layers within the Upper Floridan aquifer system. DID 3 has approximately 96 feet of casing and a total depth of approximately 195 feet. It draws water from PZ-2, the upper production zone of the intermediate aquifer. DID 1 was built before the District assumed regulation of well construction and consumptive water use; therefore, the District does not possess specific information as to its construction. Mr. Brown reviewed historical documents, including a 1930s report by the United States Geological Survey ("U.S.G.S.") about irrigation wells drilled in the location now occupied by Pop's. Mr. Brown's review led him to a reasonable conclusion that DID 1 has approximately 75 to 100 feet of casing and is drilled to a total depth of 600 to 700 feet below land surface. The District's water level measurements confirmed Mr. Brown's judgment, indicating that the well penetrates only through the Suwannee limestone formation in the Upper Floridan aquifer. His hydrogeological findings in place, Mr. Brown proceeded to perform a number of analyses using a five-layer groundwater model based on the "Mod-Flow EM" program developed by the U.S.G.S. to determine whether the withdrawals authorized by the proposed WUP would have any adverse impacts on water resources. The model's five layers simulated the five aquifer zones found in the area of Pop's. Mr. Brown performed simulations to predict the effect of the combined pumping of DID 1 and DID 3 at 1,700 gpd on a steady state basis and at 4,400 gpd for a period of 90 days. A "steady state" model assumes continuous pumping at the stated quantity forever. The scenario for pumping 4,400 gpd for 90 days is called a "transient" model, and simulates the effect of continuous pumping at the peak month quantity, without replenishment of the water source, for the stated period. Both the steady state and transient models used by Mr. Brown were conservative, in that it is unlikely that their scenarios would actually occur at Pop's. The modeling predicted that Pop's withdrawals would have no effect on the surficial aquifer or on the deep Avon Park limestone formation. Because DID 1 is likely to open to the PZ-2, PZ-3, and Suwannee limestone production zones, Mr. Brown analyzed the steady state and transient conditions for each zone. The greatest effect predicted by any of the modeling runs was a drawdown in water levels of approximately two-hundredths of a foot in the PZ-3 and Suwannee limestone zones. This drawdown would extend no farther than the boundary of Pop's property. All of the predicted drawdowns were smaller than the natural fluctuations in water levels caused by changes in barometric pressure. Thus, any possible effects of withdrawals at the quantities proposed in the WUP would be lost in the background noise of the natural water level fluctuations that occur in all confined aquifers. The water level or pressure within subterranean production zones is referred to as the "head." For water to move from one zone to another, there must be a difference in head between the zones. The evidence established that groundwater quality declines with depth at the Pop's site, but that the heads in the PZ-2, PZ-3, and Suwannee limestone production zones are essentially the same in that area. The similarity in heads means that there is no driving force to move water between the zones and thus no potential for adverse water quality changes caused by DID 1's being open to multiple production zones. In summary, the amounts of water authorized for withdrawal under the proposed permit will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resources Mr. Brown's model indicated there would be no drawdown from the surficial aquifer, where there would be the potential for damage to water related environmental features and/or the fish and wildlife using those features as habitat. Petitioner offered no evidence indicating that the proposed water use will cause adverse environmental impacts. Deviation from Water Levels or Rates of Flow The District has not established minimum flows or levels for the area including Pop's. Therefore, Rule 40D- 2.301(1)(d), Florida Administrative Code, is not applicable to this WUP. Utilization of Lowest Quality of Water Ninety percent of the water withdrawn from DID 1 will come from the Suwannee limestone formation and is highly mineralized and of lower quality than the water in PZ-2 or PZ- 3. DID 3 draws its water from PZ-2. As noted above, DID 3 provides water to the two restrooms on the premises of Pop's. Because its water is used in the public restrooms, DID 3 is considered a limited public supply well, the water from which must meet potable standards. Mr. Brown testified that, though PZ-2 provides water of higher quality than do the zones beneath it, that water only barely meets potable standards. Lower quality water than that obtained from PZ-2 would require extensive treatment to meet potable standards. Reuse or reclaimed water is unavailable to Pop's under any rational cost-benefit analysis. There is a reclaimed water transmission network in Sarasota County, but the nearest point of connection is more than one mile away from Pop's. The wetland lake on Pop's site is unsuitable because extensive land clearing, pipeline construction, and intensive filtration would be required to use its water. Such a project would not be technically or economically feasible for the small amount of water in question. The evidence establishes that Pop's will utilize the lowest quality water available. Saline Water Intrusion The evidence demonstrated that the proposed use will not significantly induce saline water intrusion. Saline water intrusion occurs in the Avon Park limestone formation. Withdrawals must cause a drawdown in the Avon Park formation to further induce saline water intrusion. DID 1 does not penetrate into the Avon Park formation. Mr. Brown's modeling indicated that the withdrawals allowed under the proposed WUP will not cause any drawdown in the Avon Park formation. Pollution of the Aquifer The proposed use will not cause pollution of the aquifer. As noted above, absent a difference in head or some driving force, there is no potential for water to be exchanged between the confined producing zones. Any small quantity that might be exchanged due to the pumping of the well would be removed by the same pumping. There is no potential for pollution of the aquifer by storm water moving through DID 1 or DID 3 because there is no head differential or driving force to move storm water down into the wells. The District's historic water level measurements indicated that during the rainy season, when the site is most likely to be inundated, water levels in the wells are 0.15 feet above land surface. The well structures extend at least one foot above ground level and are sealed with plates and gaskets. Adverse Impacts to Existing Off-site Land Uses The proposed use will not adversely impact off-site land uses. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider off-site impacts only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. Adverse Impacts to Existing Legal Withdrawals The proposed use will not adversely affect any existing legal withdrawals of water. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider adverse impacts to existing legal withdrawals only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. As noted above, Mr. Brown's modeling indicated that any drawdowns caused by these withdrawals are so small as to be lost within the natural fluctuations of water levels in the aquifer, even at the edge of Pop's 30-acre site. Petitioner's well is more than ten miles away from the wells at Pop's. Utilization of Local Resources to Greatest Extent Practicable The proposed use of water will use local resources to the greatest extent practicable, because the water withdrawn pursuant to the permit will be used on the property where the withdrawal occurs. Water Conservation Measures The proposed use of water incorporates water conservation measures. Pop's uses a commercial irrigation system with low volume misters, spray tips and sprinkler heads, and a rain gauge that automatically shuts down the system if one-eighth to one-quarter inch of rain falls. Mr. Perna testified that the automatic shutdown system rarely has the opportunity to work, because he manually shuts down the system if the weather forecast calls for rain. Mr. Perna testified that the typical golf range irrigates from 30 to 45 minutes per sprinkler head. Pop's irrigates roughly eight minutes per head. Overwatering can cause fungus on the Bermuda grass, giving Pop's a practical incentive to minimize irrigation. Pop's irrigates only the high traffic areas of the tee box and putting green, not the landing area. In its Basis of Review, the District has adopted a water conservation plan for golf courses located in the Eastern Tampa Bay Water Use Caution Area ("WUCA"). Basis of Review 7.2, subsection 3.2. Pop's is located in the Eastern Tampa Bay WUCA, and has implemented the items that golf courses are required to address in their conservation plans. Reuse Measures Given the small total irrigated area and the efficiency of the irrigation methods employed by Pop's, there is no realistic opportunity to capture and reuse water on the site. There is no reuse water realistically available from other sources. Thus, Pop's incorporates reuse measures to the greatest extent practicable. Waste Given the reduction in permitted quantities and the limited scope of the irrigation, the proposed use will not cause waste. Otherwise Harmful to District Resources No evidence was presented that the use of this water by Pop's will otherwise harm the water resources of the District. PETITIONER'S EVIDENCE Petitioner testified on her own behalf and presented the testimony of Ellen Richardson. Ms. Richardson testified that she had once seen a sprinkler running at Pop's during a rainfall, though she conceded that it had just begun to rain when she saw it. Ms. Richardson also testified that she had more than once seen sprinklers running at Pop's during daylight hours. However, Mr. Brown testified that some daytime irrigation is permissible under the District's watering restrictions, where heat stress and applications of fertilizers and chemicals make daytime watering necessary. These conditions applied to Pop's. Petitioner's chief concern was with her own well. Since the late 1980s, she has experienced intermittent water outages. The District has repeatedly worked with Petitioner on her well problems, and Petitioner feels frustrated at the District's inability to solve them. However, the District's evidence established that Petitioner's problems with water levels in her own well could not possibly be caused or exacerbated by the withdrawals at Pop's, ten miles away. To the extent that the renewal of this WUP will result in drastic decreases in permitted withdrawals, Petitioner's position would be improved even accepting her theory that these withdrawals have some impact on her well. In her petition, Petitioner alleged that there were disputed issues of material fact as to eight of the fourteen permitting criteria discussed above. While she engaged in spirited cross-examination of the District's witnesses, Petitioner offered no affirmative evidence showing that the any of the conditions for issuance of permits were not met. Petitioner's chief attack was that Rule 40D- 2.301(1), Florida Administrative Code, requires "reasonable assurances" that the permittee will fulfill the listed conditions, and that the applicant here could not supply "reasonable assurances" because of his long history of failure to comply with the conditions of prior permits. As evidence, Petitioner offered the District's historic record of this permit, which indeed was replete with correspondence from the District requesting records related to pumpage and water quality, and apparent silence from Dr. Kelly in reply. However, the record also explains that the failure to provide data was not the result of obduracy, but because farming had ceased on the property. When the less water intensive use of the driving range commenced approximately nine years ago, the owner ceased monitoring activities. The District, under the impression that farming was still taking place on the property, continued to request pumpage and water quality data for several years after the conversion. It appears from the record that Dr. Kelly, an absentee landlord, simply did not bother to respond. Dr. Kelly's past discourtesy does not rise to the level of calling into question the reasonable assurances provided in this permit renewal application, particularly where the lessee, Mr. Perna, has every reason to ensure that the conditions of the WUP are fulfilled. The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the permit renewal application. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why the permit renewal application should not be granted. In particular, Petitioner raised an important policy issue as to whether an applicant's history of failure to comply with permit conditions should be considered by the District in assessing the reasonableness of the applicant's assurances of future compliance. The District contended that the applicant's compliance history is irrelevant. While the District ultimately prevailed on the substantive issue, its procedural claim of irrelevance was rejected, and Petitioner was allowed to attempt to prove her contention as to Dr. Kelly's noncompliance. It is not found that Petitioner's litigation of this claim was frivolous.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order determining that Dr. Thomas E. Kelly has satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of water use permits, and that the District issue Water Use Permit No. 20005687.003 to Dr. Thomas E. Kelly. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 27th day of November, 2001. COPIES FURNISHED: Becky Ayech 421 Verna Road Sarasota, Florida 34240 Jack R. Pepper, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether Water Use Permit (WUP) Application Number 20009478.005 meets the conditions for issuance as established in Section 373.223, Florida Statutes (2001), Florida Administrative Code Rule 40D-2.301 (April 2001), and the District’s Basis of Review for Water Use Permit Applications.
Findings Of Fact The Parties Petitioner, Alan Behrens, owns real property and a house trailer located at 4070 Southwest Armadillo Trail, in Arcadia, Florida. Behrens uses a two-inch well as the primary source of running water for his trailer. Boran and his family operate a ranch and sod farm in Arcadia, Florida, under the limited partnership of Boran Ranch and Sod, Ltd. Boran uses several different on-site wells to irrigate the farm. See Findings 12-17, infra. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. Permit History Boran’s property is a little over 1,000 acres in size, on which he has raised cattle and grown sod for approximately the past four years. Before Boran owned the property, its prior occupants used the land for growing fall and spring row crops (primarily tomatoes). Boran's cattle and sod farm uses less water than was used by previous owners and occupants. In 1989, the original permit holders could make annual average daily withdrawals of 309,000 gallons but also were allowed a maximum daily withdrawal of 6,480,000 gallons. In 1992, the permitted withdrawals increased to an annual average daily quantity of 2,210,000 gallons, with a peak monthly limit of 3,596,000 gallons per day. On December 14, 1999, Boran received an agricultural water use permit (WUP No. 20009478.004) from the District. This current existing permit expires on December 14, 2009. The current permit grants Boran the right to withdraw groundwater for his agricultural use in the annual average daily quantity of 1,313,000 gallons, and with a peak month daily quantity of 3,177,000 gallons. On September 11, 2000, Boran filed an application to modify his existing water use permit. Modification of Boran's existing permit does not lengthen the term of the permit, and the scope of the District's review was limited to those features or changes that are proposed by the modification. The proposed modification would allow Boran to increase his annual average daily quantity by 175,000 gallons, and increase the peak month daily quantity by 423,900 gallons, for the irrigation of an additional 129 acres of sod. With the proposed increase, the new annual average daily quantity will be 1,488,000 gallons, and the new peak month daily quantity will be 3,600,900 gallons. The proposed modification also provides for the construction of an additional well (DID #6) on the southeastern portion of property, which will withdraw groundwater from the upper Floridan aquifer. The proposed agency action also entails a revision of the irrigation efficiency rating for the entirety of Boran Ranch. Irrigation efficiency refers to the ability to direct water to its intended target, which in this case means the root zone of the sod, without losing water to evaporation and downward seepage. Under the proposed permit modification, Boran will increase the entire farm’s water efficiency from 65 percent to 75 percent. As discussed further in the Conditions for Issuance section infra, the District's AGMOD modeling program uses this efficiency rating as part of its determination of the appropriate quantities for withdrawals. The higher the efficiency rating, the less water received under a permit. Because the efficiency rating increased, the application rate for water decreased from 42" per year to 36.4" per year for the entire Boran Ranch. Boran's Wells There are six well sites (labeled according to District identification numbers, e.g., DID #3) existing or proposed on Boran’s property. DID #1 is an eight-inch well located in the northeastern portion of the property. DID #1 provides water solely from the intermediate aquifer. DID #2 is an eight-inch well located in the middle of the property. DID #2 withdraws water from both the intermediate and upper Floridan aquifers. Both DID #1 and DID #2 were installed in 1968, and predate both the first water use permit application for the farm and the District's water use regulatory system. DID #4 is a twelve-inch well located in the north- central part of the property and solely taps from the upper Floridan aquifer. DID #4 had already been permitted and constructed as of the date of the proposed modification application at issue in this case. DID #3 and DID #5 are twelve-inch wells which have already been permitted for the southern and northern portions of the property, respectively, but have not yet been constructed. Both wells will withdraw water only from the upper Floridan aquifer. DID #6 is a proposed twelve-inch well to be located on the southeastern portion of the property and to irrigate an additional area of sod. DID #3, #5, and #6 will all be cased to a depth of approximately 540 feet, and only open to the upper Floridan aquifer to a depth of approximately 940 feet. By casing the well with pipe surrounded by cement, these wells will be sealed off to all aquifers above 540 feet, including the intermediate aquifer. All the wells on the property are used to irrigate sod. The wells have artesian flow, but utilize diesel pumps to provide consistent flow pressure year-round throughout the fields (some of which can be a mile and a half from a well). Since running the pumps costs money, there is an economic incentive not to over-irrigate. In addition, over-irrigation can lead to infestations of fungi and insects, and eventually cause the grass to rot and die. As a result, the fields receive irrigation only when dry areas in the fields appear and the grass begins to wilt. Boran Ranch Operations and Management Practices Boran Ranch primarily grows three kinds of grasses: St. Augustine Floratam; St. Augustine Palmetto; and Bahia. (Boran also is experimenting on a smaller scale with common paspalum and common Bermuda.) The Bahia grass, which is what also grows in the ranch's cattle pasture, does not require irrigation; the St. Augustine grasses are less drought- resistant and require irrigation at times. The majority of the sod sold to residential installers (who ordinarily work for landscape companies) is a St. Augustine grass. Commercial or governmental roadside installations favor Bahia. Currently, Boran sells more Bahia than St. Augustine. But market demand determines which types of grass are produced on the farm. As residential use and demand for St. Augustine in southwest Florida increases, so would the proportion of the farm used for growing St. Augustine grass. Boran grows sod year-round because of a large demand for the product in Ft. Myers and Cape Coral, and to a lesser extent in Punta Gorda and Port Charlotte. Sod helps control erosion and is considered to have aesthetic value. There also was some evidence that sod lowers the ambient temperatures, as compared to bare dirt; but the evidence was not clear how sod would compare to other ground cover in lowering temperatures. When subsurface seepage irrigation is being used, a sod field must be disked and "laser-leveled" to the proper elevation, with a slight slope created in the field to help ensure proper irrigation and drainage, before it can be used for sod production. The fields are laser-leveled before the irrigation system is installed and the crop is planted. The perforated irrigation supply lines of Boran Ranch’s subsurface irrigation system, also known as the "tile," run the opposite direction of the slope of the field and perpendicular to the main irrigation line. Once the subsurface irrigation system is installed, the field receives sprigs of sod, which are then watered and "rolled" to pack them into the ground. Approximately three months after a field has been rolled, the new sod is then periodically fertilized, sprayed and mowed. Sod takes approximately one year to grow before it may be harvested. The sod at Boran Ranch is harvested via tractor with a "cutter" on its side, which cuts underneath the grass, lifts it up onto a conveyor belt, and then onto a pallet for shipping. There are four different types of irrigation systems used for growing sod in Florida: (1) pivot systems which rely on sprinklers attached to overhead lines that rotate around a fixed point; (2) overhead rain guns which utilize motorized hydraulic pressure to spray a field; (3) above-ground seepage; and (4) subsurface irrigation systems (which can also be used to drain excess water from fields during large rain events). The most efficient irrigation system used for sod in Florida is the subsurface irrigation system. Boran Ranch first started the subsurface irrigation system approximately four years ago. Since that time, Boran Ranch has converted almost all its fields to the subsurface irrigation system, at a cost of approximately $1150 to $1350 per acre. As a result of this conversion process, Boran Ranch now uses less water per acre of sod. The subsurface irrigation system delivers water from a well to a water control structure (also known as the "box") via the imperforated main irrigation line. The perforated lines of the "tile" are connected to this main irrigation line at a 90-degree angle. The largest portion of the "box" sits underground. Once the water in the main irrigation line reaches the "box," water builds up behind removable boards contained in the box, creating the backpressure which forces water out into the tile. Water flows out from the tile to maintain the water table level at or near the root zone of the sod. Subsurface irrigation systems only function on property that has a hardpan layer beneath the soil. The hardpan layer acts as a confining unit to minimize the downward seepage of water, thereby allowing the subsurface irrigation system to work efficiently. Behrens questioned whether Boran Ranch has the necessary hardpan based on Todd Boran's reliance on hydrogeologists for this information. But the expert testimony of Boran's hydrogeology consultant and the District's hydrogeologist confirmed Todd Boran's understanding. Typically, the highest board in the box has the same height as the top of the field. Once the water level inside the box surpasses the height of the last board, water will spill over that board into the remainder of the box and then out another main irrigation line to the next box and set of tiles. By removing some of the boards in the box, Boran can bypass irrigating certain sections of his fields in favor of other areas. Excess water from the fields flows into field ditches which lead to wetlands on the property. If water leaves the wetlands during episodes of heavy rains, it flows downstream to the Peace River. Conditions for Issuance Boran Ranch is located in southwestern DeSoto County, in an area designated by the District as the Southern Water Use Caution Area (SWUCA). The District created the SWUCA, which covers 5,000 square miles, after first determining that the groundwater resources of eastern Tampa Bay and Highlands Ridge regions were stressed and creating the Eastern Tampa Bay Water Use Caution Area (ETBWUCA) and Highlands Ridge Water Caution Area (HRWUCA). Both the ETBWUCA and the HRWUCA are contained within the larger boundaries of the SWUCA. Within the ETBWUCA is an area along the coasts of portions of Hillsborough, Manatee, and Sarasota counties known as the Most Impacted Area (MIA). Special permitting rules exist for new projects located within the ETBWUCA, HRWUCA, and MIA, but not within the remainder of the "undifferentiated" SWUCA. Boran Ranch is located in this "undifferentiated" area of the SWUCA. Behrens took the position that Boran should not be permitted any additional water use until special permitting rules are promulgated for the "undifferentiated" SWUCA. But Behrens could cite no authority for such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. The evidence proved that the quantities authorized by the proposed modification are necessary to fulfill a certain reasonable demand, as required by Rule 40D- 2.301(1)(a). Boran sought additional water quantities through the permit modification application in order to irrigate an additional 129 acres of its sod farm. The application reflects a need for additional water, associated with additional acreage added to the farm. Boran used the District's AGMOD spreadsheet model, which is based on a mathematical methodology known as the modified Blainey-Criddle method, to determine the reasonable quantities for Boran's specific agricultural use. AGMOD inputs into its computations the following variables: (1) geographic location of the proposed use; (2) type of crop grown; (3) irrigation (efficiency); (4) pump capacity; (5) soil type; and (6) number of acres to be irrigated. AGMOD is a generally accepted tool used for determining the allocation of water quantities for agricultural use. In the instant case, the AGMOD calculations incorporated 87 years of rainfall data and its results reflect the quantities necessary in the event of a two-in-ten-year drought. Similarly, the AGMOD calculations in the instant case take into account the change in irrigation efficiency from 65 percent to 75 percent. Behrens suggested that Boran should not be allowed to use any more water until minimum flows and levels are established for the intermediate aquifer in the vicinity. However, Behrens could cite no authority for imposing such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. See Finding 49 and Conclusion 86, infra. Behrens also suggested that inputs to AGMOD should assume more Bahia and less St. Augustine grass so as to reduce the resulting amount of reasonable demand. He also suggested that Boran's reasonable demand should not take into account possible future increases in St. Augustine grass production based on possible future market demand increases. But it does not appear that the District requires an applicant to differentiate among various types of grasses when inputting the crop type variable into the AGMOD model for purposes of determining reasonable demand. See Water Use Permit Information Manual, Part C, Design Aids (District Exhibit 2C), Table D-1, p. C4-9. The evidence proved that Boran demonstrated that the proposed use will not cause quantity or quality changes that adversely impact the water resources, on either an individual or cumulative basis, including both surface and ground waters, as required by Rule 40D-2.301(1)(b). Data from water quality monitoring reports indicate that water quality at Boran Ranch and in the region has remained fairly consistent. There were no statistically significant declining trend in water levels in the region. Behrens admitted that water quality in his well has been consistently good. One apparent increase in total dissolved solids and chlorides in DID #1 was explained as being a reporting error. Boran inadvertently reported some findings from DID #2 as coming from DID #1. Until the error was corrected, this made it appear that water quality from DID #1 had decreased because, while DID #1 is open only to the intermediate aquifer, DID #2 is open to both the intermediate aquifer and the upper Florida aquifer, which has poorer water quality. Both Boran and the District used the MODFLOW model, a generally accepted tool in the field of hydrogeology, to analyze withdrawal impacts. The purpose of modeling is to evaluate impacts of a proposed use on the aquifer tapped for withdrawals, and any overlying aquifers including surficial aquifers connected to lakes and wetlands. MODFLOW uses mathematics to simulate the different aquifer parameters for each production unit determined from aquifer performance testing. During the permit application process, both Boran and the District conducted groundwater modeling by simply adding the proposed new quantities to models developed for Boran's permit application in 1999. The models were comparable but not identical; the District's model was somewhat more detailed in that it separated predicted drawdowns into more aquifer producing units. Both models satisfied the District that the proposed modification would have no adverse impact on water resources. After the challenge to the Proposed Agency Action, the District created a new model to assess the impact of only the additional quantities requested by the modification. This new model added some aquifer parameters obtained from Regional Observation Monitoring Program (ROMP) well 9.5, which was constructed very close to the Boran Ranch in 1999. (Information from ROMP 9.5 was not available at the time of the earlier models.) The new model allowed the District to limit the scope of its review to those changes proposed by the modification. The results of this model show that impacts are localized and that most are within the confines of Boran’s property. The greatest impacts resulting from the proposed modification would occur in the Suwannee Limestone producing unit (the upper-most portion of the upper Floridan aquifer), the unit to be tapped by DID #6. The confining unit above the upper Floridan aquifer in this region of DeSoto County is approximately 300-400 feet thick, and impacts on the intermediate aquifer, which is above this confining unit, are much less. When the District's new model was run for peak monthly withdrawals (423,900 gpd for 90 days), the model's 1.0 foot drawdown contour was contained within the confines of Boran’s property, and the 0.1 foot drawdown contour extended only approximately two miles out from the well node of DID #6. Atmospheric barometric changes can cause fluctuations in aquifer levels that exceed a tenth of a foot. As minimal as these modeled impacts appear to be, they are larger than would be expected in reality. This is because, for several reasons, MODFLOW is a conservative model- -i.e., impacts modeled are greater than impacts that would be likely in actuality. First, MODFLOW is a mathematical, asyntopic model. This means it models very gradually decreasing drawdowns continuing over long distances as predicted drawdowns approach zero. This tends to over-predict impacts at greater distances from the withdrawal. In reality, the heterogeneity or discontinuity of confining units cuts down on drawdown effects. The steepest drawdowns occur at a well node and then decline relatively rapidly with distance. Second, several model inputs are conservative. The annual average quantities for water use generated under the AGMOD methodology is based on a two-in-ten-year drought year. The peak month quantity applies to the three driest months within the two-in-ten-year drought period. The MODFLOW model applies this 90-day peak usage continuous pumping under AGMOD and conservatively assumes no rainfall or recharge to the aquifers during this period. Both of these are extremely conservative assumptions for this region of Florida. The District's determination of reasonable assurances "on both an individual and a cumulative basis" in water use permit cases only considers the sum of the impact of the applicant's proposal, together with all other existing impacts (and perhaps also the impacts of contemporaneous applicants). The impacts of future applicants are not considered. This differs from the cumulative impact review under Part IV of Chapter 373 (environmental resource permitting). See Conclusions 80-84, infra. Modeling is a component of the District’s assessment of impacts on a cumulative basis. In addition, the District reviewed and assessed hydrographs of the potentiometric surface from nearby ROMP wells, water quality data, permit history of the Boran site, and regional hydrologic conditions. The hydrographs represent the accumulation of all impacts from pumpage in the area and show stable groundwater levels in the region. Water quality also is stable, with no declining trends. The permit history indicates that permitted withdrawals on the Boran site have declined. For all of these reasons, the evidence was that Boran's proposed withdrawals would create no adverse impacts on water resources on a cumulative basis. The evidence proved that the proposed agency action will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources, as required by Rule 40D-2.301(1)(c). Due to the significant confinement between the source aquifers and the surficial aquifer and surface water bodies, the modeling results show no adverse impact to the surficial aquifer, and no adverse impact to wetlands, streams, estuaries, fish and wildlife, or other natural resources. The evidence was that there are no minimum flows or levels set for the area in question. Furthermore, Standard Condition 9 of the Proposed Agency Action requires Boran to cease or reduce withdrawals as directed by the District if water levels should fall below any minimum level later established by the District. The more persuasive evidence was that the requirements of section 4.3 of the District's Basis of Review have been met. (A moratorium on water use permits until establishment of minimum flows and levels would be neither reasonable nor appropriate.) The evidence proved that the proposed use will utilize the lowest water quality he has the ability to use, as required by Rule 40D-2.301(1)(e), because the new withdrawals are exclusively from the upper Floridan aquifer, which has poorer quality than the intermediate aquifer. Deeper aquifers cannot be used because the water quality is poorer than the upper Floridan aquifer, and it is technically and economically infeasible to use it for agricultural purposes. Behrens suggests that Boran should be required to discontinue all withdrawals of higher quality water from the intermediate aquifer as part of the proposed modification. While an offer to do so might be welcomed (as was Boran's offer to install subsurface seepage irrigation and apply the higher efficiency percentage to the entire Boran Ranch), Behrens could cite no authority for imposing such a condition; and the more persuasive evidence was that imposition of such a condition would be neither reasonable nor appropriate under the circumstances of this case. The evidence proved that the proposed use will not significantly induce saline water intrusion, as required by Rule 40D-2.301(1)(f), because the model results show that the drawdown contours do not approach anywhere near the ETBWUCA or MIA areas. Boran's Ranch is located approximately 21 miles from the MIA boundary and 10.8 miles from ETBWUCA boundary. Further, Boran must monitor the water quality in DID #1 and DID #4 and document any changes in water quality as a result of the withdrawals. The parties have stipulated that the proposed use meets the requirements of Rule 40D-2.301(1)(g) and will not cause pollution of the aquifer. The evidence proved that the proposed use will not adversely impact offsite land uses existing at the time of the application, as required by Rule 40D-2.301(1)(h), because the modeling showed no impact to the surficial aquifer or land use outside Boran Ranch. The confinement between the point of withdrawal and the surface is too great to impact offsite land uses in the instant case. The evidence proved that the proposed use will not adversely impact any existing legal withdrawal, as required by Rule 40D-2.301(1)(i), based on the ROMP hydrographs and modeling showing minimal drawdowns outside the boundaries of Boran Ranch. Behrens claims that Boran's proposed modification will adversely impact his well, which is approximately 3.5 miles northeast of the northeast corner of the Boran property and over four miles away from DID #6. But the greater weight of the evidence was to the contrary. (The wells of other DCAP members were even further away, making impacts even less likely.) Behrens has no independent knowledge of the depth of his two-inch well but believes it is approximately 150 feet deep, which would place it within the intermediate aquifer. In view of the consistent quality of Behrens' well water, and the nature of his well construction, it is most likely that Behrens' well does not penetrate the confining layer between the intermediate aquifer and the upper Floridan aquifer. If 150 feet deep, Behrens' well would not extend into the deepest producing unit of the intermediate aquifer (PZ-3); rather, it would appear to extend into the next deepest producing unit of the intermediate aquifer (PZ-2). But it is possible that Behrens' well cross-connects the PZ-2 and the shallowest producing unit of the intermediate aquifer (PZ-1). (The evidence did not even rule out the possibility that Behrens' well also is open to the surficial aquifer.) Assuming that Behrens' well is open to the PZ-2 only, conservative MODFLOW modeling predicts no impact at all from the proposed modification. (Behrens' well would be outside the zero drawdown contour.) Meanwhile, hydrographs of PZ-2 from nearby ROMP wells show marked fluctuations (five-foot oscillations) of the potentiometric surfaces in producing units of the intermediate aquifer. These fluctuations appear to coincide with increased pumping out of the intermediate aquifer. These fluctuations in the potentiometric surface are not being transmitted up from the upper Floridan aquifer or down from the surficial aquifer. The potentiometric surface in those aquifers do not exhibit matching fluctuations. It appears that the intermediate aquifer is being impacted almost exclusively by pumping out of that aquifer. (This evidence also confirms the integrity of the relatively thick confining layer between the intermediate and the upper Floridan aquifers, which serves to largely insulate Behrens' well from the influence of pumping out of the upper Floridan.) Behrens seems to contend that, in order to determine adverse impacts on a cumulative basis, the impact of Boran's entire withdrawal, existing and proposed, which is modeled conservatively at approximately 0.3 feet, must be considered. But the District considers an adverse impact to an existing legal withdrawal to consist of an impact large enough to necessitate modification to the producing well in order for it to continue to function as intended. The greater weight of the evidence was that the well on Behrens' property was not designed to be a free-flowing well but was designed to use a pump to operate as intended. At the time Behrens purchased his property, there was a well and a non-functioning pump on the property. Even at the beginning of his ownership, he did not always have running water without a functioning pump. In approximately 1986 or 1987, Behrens installed a new electric pump because it allowed the well to produce more water. After installation of the pump, Behrens raised his trailer an additional five feet (to guard against flooding) which caused it to be approximately ten feet high, meaning the water had to travel that much farther against gravity to reach Behrens' faucets. For most of the time that he has owned the property, Behrens has used a pump on the well. Behrens installed a check valve to allow him to turn off the pump. Sometimes during storm or flood conditions, electric power failed or was cut off, and Behrens was forced to rely solely on artesian flow, which was sometimes adequate in flood conditions during the rainy season. At other times when artesian flow was adequate, Behrens would turn off the pump and rely solely on artesian flow. But it also was sometimes necessary for Behrens to use the pump to get adequate water flow. During the summer of 2001, Behrens' pump failed, and he had to rely solely on artesian flow. As in prior years, artesian flow was sometimes inadequate. In order to be able to get at least some artesian flow for the maximum amount of time, Behrens lowered the spigot on his well by about two feet. Although Behrens is aware that the iron casing of his well could corrode over time, he has never called a licensed well driller or other contractor to inspect his well. Behrens did not test his own well for possible blockage that would result in a lower yield. Furthermore, Behrens admits that his whole outdoor water system needs to be completely replaced. The evidence proved that the proposed use will incorporate water conservation measures, as required by Rule 40D-2.301(1)(k), based on the water conservation plan submitted to the District, installation of a state-of-the-art irrigation system, increase in efficient use of the water, and decrease in the application rate. (Behrens' arguments that Boran has been allowed to use too much water and his question as to the existence of hardpan underlying Boran's fields already has been addressed. See Findings 27 and 35, supra.) The parties have stipulated that Boran has demonstrated that the proposed use will incorporate reuse measures to the greatest extent practicable, as required by Rule 40D-2.301(1)(l). The evidence proved that the proposed use will not cause water to go to waste, as required by Rule 40D-2.301(m), because the irrigation method is the most efficient system that is economically and technically feasible available for sod. (Behrens' question as to the existence of hardpan underlying Boran's fields already has been addressed. See Finding 27, supra.) The evidence proved that the proposed use will not otherwise be harmful to the water resources of the District, as required by Rule 40D-2.301(1)(n), based on the review of all other permit criteria. Propriety of Behrens' Purpose Behrens did not review the District's permit file on Boran's application before he filed his petition. The evidence suggested that he traveled to the District's Sarasota office for that purpose but found on his arrival that the complete permit file was not available for inspection there. Because of the filing deadline, he did not find time to make another attempt to review the permit file of record before he filed his petition. Behrens also did not contact Boran, the District or anyone else with any questions about the proposed agency action before filing his petition. He also did not visit Boran’s property, and made no inquiry as to the irrigation system employed by Boran. Behrens also did not do any additional legal research (beyond what he had done in connection with other water use permit proceedings) before filing his petition. Behrens believed he had all the information he needed to file his petition. Behrens has previously filed at least one unsuccessful petition challenging the District’s issuance of a water use permit. See Behrens v. Southwest Fla. Water Management Dist., DOAH Case No. 00-4801 (DOAH Jan. 29, 2001). DCAP, with Behrens acting as its president, has previously filed at least three unsuccessful petitions challenging the District’s issuance of a water use permit. See, e.g., DeSoto Citizens Against Pollution, Inc. v. Farmland Hydro Limited Partnership, DOAH Case No. 02-232 (Southwest Fla. Water Man. Dist. June 25, 2002); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01- 3056 (DOAH Aug. 22, 2001); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01-2917 (DOAH Sept. 24, 2001). However, none of those proceedings involved a project at the Boran site. It is found that, under the totality of circumstances, Behrens' and DCAP's participation in this proceeding was not for an improper purpose--i.e., not primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of Boran's permit modification. While a reasonable person would not have raised and pursued some of the issues raised by Behrens and DCAP in this proceeding, it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose. It appears that Behrens based his standing in part on the requirement in Rule 40D-2.301(1)(i) that Boran provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal to be provided "on both an individual and a cumulative basis.” (Emphasis added.) Not unreasonably, Behrens argued that this requirement allowed him to base his standing on alleged injuries from all of Boran's withdrawals, existing and proposed, which would create a 0.3- foot drawdown on his well. While his argument is rejected, it cannot be found to be frivolous or made for improper purpose. Behrens' argument that Boran did not meet Rule 40D- 2.301(1)(i) was based on the 0.3-foot drawdown and his position that his well was designed to be artesian free- flowing. While Behrens' proposed finding was rejected, the position he took is not found to be frivolous or taken for improper purpose. Several other arguments made and positions taken by Behrens have been rejected. See Findings 27, 34, 35, and 51, supra, and Conclusions 86-87, infra. But they cannot all be found to have been frivolous or made and taken for improper purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting Boran’s water use permit application number 20009478.005; and denying the motions for attorney's fees and costs under Section 120.595(1), Florida Statutes. Jurisdiction is reserved to enter a final order on the part of the motions for sanctions under Section 120.569(2)(e). DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 29th day of July, 2002. COPIES FURNISHED: Alan R. Behrens, President DeSoto Citizens Against Pollution, Inc. 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Mary Beth Russell, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact The Department of Environmental Protection is the state agency responsible for permitting involving water quality and the dredging and filling of wetlands as defined in Chapter 403, Florida Statutes. Petitioner, Stephen J. Dibbs, owns 20.03 acres of land located at the southeast corner of the intersection of Dale Mabry Highway with Hoedt Road, north of Tampa in Hillsborough County, Florida. The property consists of 11.27 acres of non-jurisdictional uplands and 8.76 acres of forested jurisdictional wetlands which divide the property somewhat diagonally in a northwest to southeast direction. There are uplands along the entire western boundary of the property along Dale Mabry Highway and Zambito Road, as well as in the southwestern portion of the property. The property is surrounded by commercial, residential and multifamily development and is zoned by Hillsborough County for commercial use. The deeper portions of the wetlands area are dominated by cypress trees and the transitional wetlands areas include laurel oak, American elm, red maple and dahoon holly. These wetlands currently provide habitat for fish and other wildlife and provide for water storage and treatment. This is a high quality forested wetlands which performs the valuable wetlands functions outlined above. It is subject to the Department's permitting procedures. Mr. Dibbs purchased the property in 1989 knowing at the time of purchase that jurisdictional wetlands were located thereon as defined by a previously conducted Departmental jurisdiction determination. He also knew that at the time of purchase there was no vehicular access/egress to the property via Hoedt Road. On April 26, 1994, Mr. Dibbs submitted a revision to his previously submitted application No. 292103383 for a permit to fill a portion of the wetlands on his property described above. Thereafter, on August 19, 1994, the Department issued its Intent to deny the requested permit and on August 31, 1994, Mr. Dibbs filed a timely Petition to contest the agency action. The parties agree, and it is found, that: The subject project does not occur within an Outstanding Florida Water. The project will not negatively impact any threatened or endangered species. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will not adversely affect significant historical and archaeological resources, Mr. Dibbs proposes to fill 2.014 acres of wetlands located at the western end of his property. The impacts to this filled parcel will be permanent in nature. The project, as originally envisioned in the March, 1992 application by Mr. Dibbs, called for the filling of approximately 4 acres of wetlands for a large commercial development and a "Par 3" golf course. In the permitting process, the Department must first determine if the project is in the public interest, and the cumulative impact of the proposed project is a part of that public interest determination. Efforts at minimization of the proposed project's impact on the wetlands are made at that time and the applicant's proposal for mitigation cannot be considered until he has established he cannot otherwise meet the statutory standards by minimizing the proposed impacts to wetlands by avoiding them or by reducing the amount of wetlands area impacted. In the course of negotiations with and at the request of the Department, Mr. Dibbs modified the project to eliminate the golf course and reduce the size of the commercial development, which resulted in a decrease in the amount of fill from approximately 4 acres to the presently sought 2.014 acres. As a part of the permitting process, and in support of mitigation efforts, the Department suggested five modifications to Mr. Dibbs which it felt would make the project permittable. These were: Further minimization of wetlands impacts by a re-orientation of buildings, roads and parking areas/spaces or a reduction in the number of commercial sites to allow the remaining operations to be better fitted into available uplands with less spill-over into wetlands. Limitation of impact to the fringe areas of the wetlands rather than the interior. Investigating the feasibility of moving the Pier One Import or any other facility back from Dale Mabry and turning Chick-Fil-A and China Coast sideways to lesser their direct impacts. Maintain the concept of vertical retaining wall use along the wetlands construction line as proposed. Mitigate for the reduced wetlands encroach- ments at a creation ratio of 1.5:1 with tree spade transplants at 15 foot centers, interplanted with 3 gallon or larger pot plants to create a 10'X10' overall plant spacing, and the dedication of the mitigation area and all remaining wetlands to the Department in a perpetual conservation easement. Of these proposals, the vertical retaining wall, (4), and the submission of a mitigation plan, (5), were part of Petitioner's April, 1994 modification. There remains, however, some resistance to the dedication of the wetlands and mitigation area by a perpetual easement. The Department admits that the turning of the Chick-Fil-A and China Coast facilities sideways is not practicable. Since the remaining suggestions essentially involve eliminating two of the four commercial sites, Mr. Dibbs, determining that such action would render the development economically infeasible, rejected those suggestions. The Department suggested modifications to the Dibbs project which limited the wetlands fill to approximately 0.5 to 0.7 acres by having only two restaurants with a truck access from Hoedt Road. While there is an issue as to the economic viability of the Department's suggestion, that suggestion is practicable from an engineering standpoint, notwithstanding the opinion of Mr. Mai, Petitioner's expert. It would also meet both the parking requirements of the Hillsborough County Land Development Code and the corporate requirements of General Mills, the owner of such mid-priced sit-down restaurants as Olive Garden and China Coast, as proposed here. Nonetheless, after Petitioner's initial application was filed in 1992, consistent with the Department's mitigation suggestions, Mr. Dibbs did make certain modifications to the proposed project in an effort to minimize its impact on the environment. This accounted for the elimination of the previously considered miniature golf course and a reduction in size of the development which reduced the required amount of fill from 4 acres to 2.014 acres. The project, as described in the current application under consideration, is what Petitioner considers the smallest the project can be made and still be economically feasible. As presently envisioned by Petitioner, the development project will encompass approximately 8 acres and will include four (4) freestanding commercial facilities, including two sit-down restaurants, an Olive Garden Restaurant and a China Coast Restaurant; a fast food restaurant, Chick-Fil-A; and a retail facility, Pier One Imports, all along the western boundary of the property fronting Dale Mabry Highway and Zambito Road. The Chick-Fil-A would be located in the northwest corner of the development almost entirely on what is presently forested wetlands. The Pier One Imports store would be on what is presently forested wetlands, south of the Chick-Fil-A and north of the China Coast restaurant which, itself, would involve some impacts to forested wetlands. The Olive Garden restaurant would be located on the southwest corner of the property south of the China Coast. It is the only building in the proposed development which would not involve some wetlands impact. Due to the length of time involved so far in obtaining permits for the development, both Pier One and General Mills, the parent for China Coast and Olive Garden, have withdrawn their agreements with Mr. Dibbs to utilize his property though they remain interested in them. At one point, General Mills offered Petitioner $1.6 million for the Olive Garden and China Coast properties. Mr. Dibbs has entered discussions with other prospective tenants but all have space requirements similar to those envisioned in the present planned development. He has found, generally, a greater demand for space than there are sites available. These space requirements convince him that the minimum encroachment that would satisfy his development plans is the 2.014 acres proposed. Any further reduction in encroachment would result in a need to change the development proposal which, Mr. Dibbs claims, would negate the economic viability of the development. In order for minimization to be effective and not inappropriate, it must result in the applicant still having a project which is economically viable. Economic viability means that the estimated value of the project as completed under minimization would be equal to or exceed its estimated cost. The Department's evidence tends to indicate that a project limited to an Olive Garden restaurant and a China Coast restaurant would be economically viable. Further, the Department contends that same evidence indicates that a commercial project limited to the two out parcels, at the southern portion of the project site would also be economically viable and profitable, if not as profitable as Petitioner originally anticipated. That contention has not been shown to be so. Dr. William C. Weaver, Barnett Professor of real estate and business valuation at the University of Florida and a forensic economist, utilizing figures provided by Petitioner, by deposition indicated that Petitioner had, as of the date of the testimony, incurred development costs totaling $746,000. Weaver also estimated that fill costs for the project as modified would be an additional $100,000. Wetlands replacement and monitoring, (mitigation) would cost an additional $100,000, and the cost of obtaining access to Hoedt Road would be an additional $100,000. For the purposes of calculating a rate of return, Dr. Weaver assumed the development would be limited to the two parcels on the southern portion of the site, with access to Hoedt Road down the length of the site in some manner. These sites, he concluded, have a present value of $850,000 even though not all costs have as yet been incurred. Future development of the two parcels would, in Weaver's estimation, result in a value for the project of $1.6 million. The rate of return, then, with a present value of $850,000 and a future value of $1.6 million, would be approximately 9.5 percent to 10 percent. If an additional sum of $200,000 for fill and mitigation is figured in, Dr. Weaver opines the Petitioner's rate of return would still be in the 9.5 percent to 10 percent range. Accepting Dr. Weaver's analysis and the cost estimates on which it is based, for the purpose of argument, then the project, modified as proposed by the Department, would be profitable. It should be noted here that the cost figures utilized by Dr. Weaver in his calculation were those provided by Petitioner. There is a high demand for commercial property in the vicinity of Petitioner's proposed project. Petitioner's site is one of the few remaining undeveloped parcels in the north Dale Mabry corridor, a high per capita income area which constitutes a market area encompassing a three to five mile radius from the property. Even with Pier One and General Mills pulling out, there is evidence that another restaurant chain, Golden Corral, has offered to construct a restaurant on the southern portion of the property. The western edge of the property, for the most part, abuts Dale Mabry Highway with the exception of a small section to the south which abuts Zambito Road. Zambito Road, a two-lane, county maintained, road extends northward from Ehrlich Road to a point where it merges with the northbound lanes of Dale Mabry Highway, at that point a twelve lane divided state highway. Vehicular access and egress to and from the proposed project would be, in part, via Zambito Road. Northbound traffic on Dale Mabry could enter the project by turning right, an access presently approved by the Department of Transportation. As presently designed and approved, however, the Dale Mabry entrance would be a narrow and difficult access for service vehicles. Patrons could exit the project into the northbound lane of Dale Mabry only by a right hand turn, and only if a change in permitting by the Department of Transportation would allow access onto Dale Mabry. That access would not involve any wetlands impact and this proposal is the subject of a current application to the Florida Department of Transportation on which administrative hearing is currently pending. If and when approved, any access or egress from or to Dale Mabry, calls for a fifty foot turning radius. Another source of access to and egress from the project can be via Hoedt Road, a two lane road maintained by the county, which runs east and west north of Petitioner's property line and to which Petitioner currently has no legal right to vehicular access. The intersection of Hoedt Road and Dale Mabry Highway is controlled by a signal light and is located to the north of the northwest corner of the proposed development. Petitioner expects to purchase rights to vehicular access to his development from Hoedt Road from the owner of the narrow strip which runs between the road and the northern boundary of the property. The proposed access-egress point would be located along the northern property line approximately 230 feet due east of the Hoedt/Dale Mabry intersection. Through this access, a customer traveling north on Dale Mabry could enter the development by turning right onto Hoedt Road while a customer travelling south on Dale Mabry would do so by turning left, (east), onto Hoedt Road. In both cases, the customer would then turn right, (south), into the development. A customer leaving the development via the northern access would turn either north or south onto Dale Mabry at its intersection with Hoedt Road. The Hoedt Road access point would be the primary means of access-egress for semi-trailers/commercial vehicles servicing the businesses in the development. The existing site plan provides for these vehicles to proceed directly behind the buildings for service. A third access-egress point exists or could exist off of Zambito Road at the southwest corner of the property. A customer northbound on Zambito Road could make a right turn into the proposed development or could exit the development by turning either left or right onto Zambito, the former heading south on Zambito and the latter travelling north a short distance to where Zambito joins with Dale Mabry. This access could, with modification of the development plan, allow a semi-trailer to enter and exit the site from onto Zambito Road to provide service to the businesses situated on the site. Mr. Dibbs finds this an unacceptable arrangement, however. He claims the Zambito Road entrance is a difficult intersection since it is not served by a traffic signal. As currently designed, the existing plan calls for a total of 430 parking spaces while the county only requires a minimum of 344 spaces for the four businesses. The parking scheme as proposed was considered necessary to meet the requirements expressed by Mr. Dibbs' proposed tenants. It is likely that other, substitute, tenants would have similar parking requirements. The Department has proposed a modification to Petitioner's development plan which would eliminate approximately 30 parking spaces proposed. This would still provide a number of parking spaces sufficient to meet both the county's minimum requirements and the reasonable requirements of proposed tenants. The Department has suggested that access to the development by commercial vehicles be by the Hoedt Road entrance. It would modify the access road in such a way that it would "snake" around the existing wetlands. This would, however, result in a commingling of semi trucks, smaller delivery vehicle, and customer vehicles within the interior of the development and this would not be desirable either from a safety or a business standpoint. Ease of access, as opposed to mere access, has, in the past, been considered by the Department as a valid evaluator of practicability. For this reason, and based on many of the access considerations mentioned above, Petitioner's engineering expert, Mr. Mai, considered that access from Hoedt Road must, of necessity, be straight in to the back of the buildings, and, assuming there are to be the four buildings as proposed, this position is unrebutted by the Department. Elimination of the Hoedt Road access would be impractical. Another factor to be considered on the issue of the economic practicability of minimization is that of visibility. Commercial enterprises generally must be visible to draw customers so as to be economically viable. Dale Mabry Highway is a high volume thoroughfare. The businesses on the development, medium price sit-down restaurants and an import store, all of a chain variety, cater not only to a destination oriented clientele but also to a spontaneous clientele as well. It is imperative, therefore, that these businesses be able to be seen from Dale Mabry. Petitioner claims that the elimination of the two northern commercial sites as a part of minimization would adversely affect the visibility of the two remaining sites. First, he claims, the cypress stand in the northwest portion of the wetlands would interfere with the vision of those coming down from the north. He also asserts that potential customers proceeding in a southerly direction on Dale Mabry would not be able to see the remaining businesses in enough time to make an entrance choice at Hoedt Road. They would, therefore, have to proceed south on Dale Mabry for a significant distance to the next signal, turn east and proceed to Zambito Road, and turn north again to come up Zambito Road to either an access point on the far south end of the property or to the turn right off the northbound lane of Dale Mabry. Taken together, these factors and the reduction in the number of businesses on the development site would discourage customer use, and in the opinion of Petitioner's economist and development consultant, would result in the two remaining businesses not surviving more than one year. This point appears well taken. The Department has also suggested that Petitioner replace pavement parking at the site with grassed parking; grade the landscape strips and parking medians for storm water treatment; utilize porous concrete for parking; utilize vertical as opposed to sloped retaining walls: and provide mitigation at a 1.5:1 ratio. The use of grassed parking was rejected on the basis of a safety hazard to women wearing high heeled shoes. The other suggestions were accepted by Petitioner. Some consideration was given to the fact that the property owned by Mr. Dibbs at this site includes 5.12 acres of uplands at the northeast corner of the property of which at least one acre would be needed for the proposed use as the mitigation area. The northern property line runs almost due east 1309.04 feet. The most westward point of the northeast uplands crosses the northern property line just about half way back from Dale Mabry Highway. The uplands in question is currently zoned for one single family home per acre but if re-zoned might provide for two homes per acre. The surrounding land use, however, makes re-zoning unlikely. In addition, access to that property is unavailable unless a road were to be built across the wetlands from Dale Mabry. The cost of this road construction, the additional land needed for mitigation of the wetlands used for the road, and the cost of development infrastructure would make it impracticable to use the back uplands for anything. The term "economic justification" as construed by the Department includes the access, visibility and parking consideration previously discussed in addition to other regulatory requirements and like issues. The Department has taken the position that any type of economic return on investment or cost benefit analysis is not an appropriate consideration in a permitting decision. Petitioner contends that the additional minimization suggestions proposed by the Department, when considered in the context of engineering, safety, design and development, and the minimal potentiality for continued viability of any business located on the property encumbered by those suggestions, are not practicable. The failure of the Department to consult with its staff economist regarding this project, and the paucity of demonstrated departmental familiarity or experience with economics, at least among permitting personnel, may lend some credence to this argument. The Department has, until now, followed a policy of consistency in treating applications similar to the instant application. Generally, requests for minimization include such items as vertical retaining walls, use of porous concrete, bridges, culverts and other matters, all of which fall short of requiring actual redesign of the proposed project. In the instant case, the Department proposes the elimination of approximately 50 percent of the project as minimization before considering mitigation. Turning to the issue of mitigation, notwithstanding the predictions of success by Petitioner, it appears that only the smallest part of any mitigation attempted is successful in the long run, and that for the most part, wetlands lost through dredging and filling is not replaced. Nonetheless, the parties, including the Department, continue to work within the fiction that mitigation can compensate for the destruction of existing wetlands when an applicant is otherwise unable to meet the criteria set forth in the statute. There can be little doubt that this project, as applied for, may adversely affect habitat and their wetlands functions of storm water attenuation, treatment and storage. It is of a permanent nature. The purpose of mitigation is to offset the impact of development. Whereas here the Department has indicated that only 3.021 acres of mitigation wetlands need be created to offset the 2.014 acres of wetlands destroyed, a 1.5:1 ratio, Petitioner proposed to create 4.49 acres of new wetlands, a 2.25:1 ratio without the suggested conservation easement. The proposal submitted by Petitioner, he believes, will be successful. This remains to be seen and success is not at all guaranteed. Presuming success, however, for the sake of discussion, the mitigation site will be directly adjacent to and contiguous to existing wetlands and immediately will be come a part of and subject to Department wetlands regulatory jurisdiction. If successful, the proposed mitigation would offset the adverse impacts of the project. Still another area for consideration is that concerning storm water runoff. Storm water is currently collected from Dale Mabry Highway and drains into a ditch paralleling Petitioner's highway frontage. From there, the water ultimately flows into the wetlands on his property. The current Department of Transportation system affords no treatment to the storm water before it is released onto the Petitioner's property. This storm water can reasonably be expected to contain oils, greases and other contaminants. Petitioner has proposed to include in his project a system designed to treat this highway runoff and improve its quality before it is released into the waters of the state. This system will treat the water by percolate, removing approximately 80 percent of the pollutants. In addition to treating and improving storm water runoff, the system proposed by Mr. Dibbs should provide a higher degree of water storage than currently exists for a net improvement to the environment over existing conditions. Taken together, Petitioner contends the above matters indicate there will be no adverse cumulative impacts resulting from the granting of the permit. There is some indication that the higher mitigation ratio offered by Petitioner could become a precedent for other similar projects. If that were to be the case, the resulting cumulative impact would be a positive rather than negative factor. Nonetheless, it is clear that future applications must stand on their own merit and independently stand the scrutiny of the cumulative impact test, as must the instant application. Turning to the conservation easement suggested by the Department as a condition of approval, the agency contends such an easement would allow it to reduce its requirement for mitigation from a 1.5:1 ratio to a 1:1 ratio. The Department has held in the past, it is suggested, that an applicant's agreement to provide more than the minimum acceptable mitigation can justify the lack of an easement. Mr. Dibbs contends here, and it would so appear, that his agreement to provide more than the required amount of mitigation, when coupled with the fact that the mitigated area will be a part of the Department's wetlands permitting jurisdiction, obviates any need to provide a conservation easement either to offset any adverse impact or to protect against adverse cumulative impact of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Permit No. 292103383, to dredge and fill 2.014 acres of jurisdictional wetlands in Hillsborough County, Florida be issued to Petitioner herein, Stephen J. Dibbs, subject to mitigation herein at a rate of no less than 1.5:1 and under such lawful and pertinent conditions as may be specified by the Department. RECOMMENDED this 20th day of February, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. 19. Accepted and incorporated herein. 20. Accepted and incorporated herein. First two sentences accepted. Balance is restatement of testimony. & 23. Accepted. Not a Finding of Fact but more a comment on the evidence. 25. & 26. Accepted and incorporated herein. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. Not a Finding of Fact but a comment on the evidence. 31. & 32. Accepted. 33. Accepted and incorporated herein. 34. - 36. Accepted. 37. Accepted. 38. - 40. Accepted and incorporated herein. 41. More a Conclusion of Law than a Finding of Fact. 42. Accepted and incorporated herein. 43. - 45. Accepted. 46. Accepted and incorporated herein. 47. More a Conclusion of Law than a Finding of Fact. 48. & 49. Accepted and incorporated herein. 50. - 53. Accepted and incorporated herein. 54. More a Conclusion of Law than a Finding of Fact. 55. - 57. Accepted. 58. Accepted and incorporated herein. 59. More a Conclusion of Law than a Finding of Fact. 60. & 61. Accepted but redundant. 62. Not a Finding of fact but a Conclusion of Law. 63. - 65. Accepted but redundant. 66. Accepted and incorporated herein. 67. - 69. Accepted. 70. - 74. Accepted. 75. - 81. Accepted and incorporated herein in substance. 82. & 83. Accepted. 84. - 88. Accepted. FOR THE RESPONDENT: 1. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. 12. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. - 26. Accepted and incorporated herein. 27. - 30. Accepted and incorporated herein. 31. - 34. Accepted and incorporated herein. 35. - 39. Accepted. 40. - 48. Accepted and incorporated herein. 49. & 50. Accepted and incorporated herein. 51. & 52. Accepted. 53. - 60. Accepted. 61. - 64. Accepted and incorporated herein. 65. Rejected as contra to the better evidence. 66. - 69. Accepted and incorporated herein. 70. Rejected as contra to the better evidence. 71. & 72. Accepted. 73. - 75. Accepted. 76. - 81. Accepted. 82. - 87. Accepted 88. Accepted and incorporated herein. 89. & 90. Accepted and incorporated herein. 91. & 92. Rejected as contra to the better evidence. 93. Accepted and incorporated herein. 94. - 96. Accepted and incorporated herein. 97. & 98. Accepted. 99. Accepted and incorporated herein. 100. & 101. 102. Rejected. Accepted as Department's definition. 103. Not proven. 104. - 106. Not relevant to ultimate issue. 107. 120. - - 119. 124. Not a proper Finding of Fact but a restatement the testimony of a witness. Accepted as stipulated facts. of FOR THE INTERVENOR: Noted. Accepted. - 9. Accepted. - 14. Accepted. Not a proper Finding of Fact but a conclusion as to the legal sufficiency of the evidence. - 21. Accepted as statements of the Department's non-Rule policy. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Accepted. 27. & 28. Accepted. 29. Rejected. 30. & 31. Accepted. 32. Accepted. 33. Rejected. 34. Accepted. 35. Not proven. Accepted. Accepted. & 39. Rejected. Accepted as the witness' opinion. Accepted. - 45. Accepted and incorporated herein. 46. Accepted. COPIES FURNISHED: E. Gary Early, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 P.O. Box 10555 Tallahassee, Florida 32302-2555 John W. Wilcox, Esquire Akerman, Senterfitt & Eidson, P.A. Post Office Box 3273 Tampa, Florida 33601-3273 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Virigina B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
