Findings Of Fact On or about July 25, 1989, Stephen G. Thompson, Permitting Engineer with the Department of Environmental Regulation (DER), predecessor of the Department of Environmental Protection (DEP), wrote a memorandum to Howard Rhodes, Deputy Director of DER's Bureau of Water Facilities Planning and Regulation. The memo relayed a question being posed by an engineering consultant working for Pasco County on its Lake Padgett Effluent Disposal System, DER construction Permit No. DC51-159899. The question was whether Special Condition 15 should be deleted from the permit. The Lake Padgett permit was for a rapid rate infiltration (percolation pond) land application system for the disposal, via ground water recharge, of domestic wastewater effluent. Through the question passed along to Rhodes, Rhodes understood that the system included percolation ponds and drainage ditches on the site, which the County's engineer referred to as "perimeter ditches." Rhodes was given to understand that the perimeter ditches were designed to improve the performance of the system by lowering the ground water table at the site and increasing the hydraulic capacity of the ponds. The question posed by the County's engineer indicated to Rhodes that Special Condition 15 to the Lake Padgett permit prohibited discharges from the perimeter ditches into wetlands, citing Section 403.086 of the Florida Statutes. The County's engineer suggested: Since these perimeter ditches are being installed 100 feet from the wetted perimeter of the percolation ponds, I believe it is correct to define the water in said ditches as groundwater rather than wastewater effluent. Therefore, I do not believe that Chapter 403.086 would apply to the water in these perimeter ditches. In passing the question along to Rhodes, Thompson also cast it in his own words: If the permittee designs the project with a perimeter ditch system 100 feet away from the edge of the percolation/evaporation pond wetted area, will the discharge from the ditch system have to meet WQBEL or Grizzle-Figg limits if applicable? According to Chapter 17-610.517(2) and 17-610.522, the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as an effluent disposal system. The question is whether the 100 feet buffer will allow the descrip- tion of the perimeter ditch water to be ground water or a co-mingled ground/reclaimed water. Rhodes reviewed the question and answered by memorandum dated September 15, 1989, which stated in salient part: Based on this review, discharges from perimeter ditch systems of percolation ponds must meet surface water quality requirements of advanced treatment, water quality based effluent limitations, or Grizzle- Figg limitations where applicable. Attached are comments which explain why these surface water quality requirements must be met. * * * COMMENTS Depending on site-specific parameters such as the infiltration rate, existing ground water table, subsurface flow, percolation pond depth, and ditch depth, the content of the water in the ditch may be either ground water or a mixture of ground water and reclaimed water. Because these parameters are site-specific, the content of water in the ditch is site-specific. However, knowledge of whether the water in the ditch is ground water or a mixture of ground water and reclaimed water is not important in determining the effluent limitations of the discharge from the ditch. . . . Because construction of perimeter ditches is associated with the operation of percolation ponds, the ditch should be considered part of the wastewater treatment facility and any discharge from the ditch must meet the applicable requirements of Rule 17-6, F. A. C., or Chapter 403, F.S. Also, because perimeter ditches are constructed around percolation ponds to improve performance, the ditches are located near the percolation ponds and some reclaimed water is normally drained to and collected in the ditch. Rule 17-610.517(2), F.A.C., specifically states discharge from perimeter drainage features that collect reclaimed water after land application are restricted by surface water quality considerations of additional treatment or the WQBEL provisions of Rule 17-6, F.A.C. . . . It was argued that because the zone of discharge is 100-feet from the percolation pond and the ditch is also 100-feet from the percolation pond, the water in the perimeter ditch system is ground water. However, zone of discharge as defined by Rule 17-6.0321(33), F.A.C., does not mean that all water located outside the zone of discharge is ground water. Zone of discharge is more appropriately interpreted as a "mixing zone" for ground water. Waters inside the zone do not have to meet water quality standards. If waters outside the zone do not meet water quality standards, the permit is violated. The following question also was raised: Why do the effluent limitations of Chapter 403.086, F.S., apply for the discharge of a perimeter ditch constructed 100-feet from a percolation pond when they do not apply for the discharge from a percola- tion pond constructed 100-feet away from wetlands? The answer to this question is: The discharge from the ditch is a surface water discharge whereas the discharge from the percolation pond is a ground water discharge. In the case of ground water discharges, ground water quality standards must be met outside the zone of discharge. . . . It seems that [the second sentence of F.A.C. Rule 17-610.517(2)] was interpreted to mean; if more than 50 percent of the applied reclaimed water is collected in the ditch, the water is considered effluent and if 50 percent or less of the applied reclaimed water is collected, the water is considered ground water. This is not the intent of this rule. The intent is; if more than 50 percent of the applied reclaimed water is collected in the ditch, the applied reclaimed water is considered an effluent disposal system and if 50 percent or less of the applied reclaimed water is collected, the applied reclaimed water may be considered a reuse system. Therefore, this section of rule is not applicable to the Lake Padgett effluent disposal question. The permittee requested Specific Condition 15 be deleted from the permit. In some cases, this may be done. However, if it is deleted, a condition should be added to the permit that the discharge from the ditch meet surface water quality requirements of advanced treatment, WQBELS, or Grizzle-Figg limitations, where applicable . . ., [and] the permittee should also be required to provide reasonable assurance that the required discharge limitations can be met. On March 15, 1990, another Department employee, named Jim Bottone, prepared a two-page memorandum generally discussing the increasing use of perimeter ditches conjunction with rapid-rate land application systems. The memorandum concluded: "In summary, the use of perimeter ditches in conjunction with rapid-rate systems appears to be a 'force fit' of technology in order to save money on disposal. These systems appear to circumvent the intent of the Department's reuse initiative." The discussion included a statement: "Rule 17- 610.517(2) states that the discharge from a perimeter ditch shall be restricted by surface water quality considerations." On December 13, 1990, the Department's Reuse Coordinator, David W. York, Ph.D., P.E., sent Richard Harvey, Deputy Director of the Department's Division of Water Facilities, a memorandum on the subject of perimeter ditches and rapid-rate land application systems. It referred to the Rhodes and Bottone memos, stating that the Rhodes memo "clearly addresses the applicability of surface water quality considerations for this type of system." It also stated: If perimeter ditches are used in association with land application projects, and if the ditches receive flows containing a portion of the applied reclaimed water, the ditches are subject to surface water quality constraints. Surface water quality constraints may include technology-based effluent limits, water quality-based effluent limits, or Grizzle-Figg limitations, as appropriate. F.A.C. Rule Chapter 17-610 pertains to "Reuse of Reclaimed Water and Land Application." F.A.C. Rule 17-610.517 is entitled "Surface Runoff Control." Paragraph (1) of the rule requires that the land application site be designed to prevent the entrance of surface runoff, if necessary by placement of berms around the application area for this purpose. Paragraph (2) of the rule provides: Discharge from perimeter drainage features that collect reclaimed water after land application, shall be restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) and 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. Rules 17-600.420(2) and 17-600.430 establish additional levels of wastewater treatment for facilities that discharge to surface waters. The Department is in the process of amending part (2) of Rule 17- 610.517(2) by separating the sentences, making the second sentence a new part (3) of the rule, and explaining that the new part (3) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (2) of the rule. This amendment explicitly would codify in the rule the explanation in the Rhodes memo that the second sentence of current Rule 17-610.517(2) addresses the classification of disposal systems and, to that end, establishes as a benchmark the "collection and discharge [in the ditches] of more than 50 percent of the applied reclaimed water." F.A.C. Rule 17-610.522, entitled "Subsurface Drainage," provides: Subsurface drain systems, where necessary, shall be designed in accordance with appropriate portions of Rule 17-610.300(4)(f), F.A.C., concerning Soil Conservation Service criteria for subsurface drains. The drainage system shall be designed so that the seasonal high water table is drawn down to a minimum of 36 inches below pond bottoms during resting periods. Pollutant content (including fecal coliforms) of the reclaimed water collected by the underdrains may be further restricted by surface water quality considerations pursuant to additional treatment or WQBEL provisions of Rules 17-600.420(2) or 17-600.430, F.A.C., respectively. Rapid-rate land application systems that result in the collection and discharge of more than 50 percent of the applied reclaimed water shall be considered as effluent disposal systems. The Department also is in the process of amending Rule 17-610.522 by separating the sentences, making the last sentence a new part (2) of the rule, and explaining that the new part (2) would be used solely to classify projects as "reuse" or "disposal" and would in no way affect the requirements of part (1) of the rule. The 50 percent figure in F.A.C. Rules 17-610.517(2) and 17-610.522 was chosen based on deliberations by the 1988-89 Reuse Technical Advisory Committee (RTAC). The RTAC offers technical expertise and advice to the Department as revisions to Chapter 17-610 are drafted. A criterion was needed for categorization purposes, and it was determined that 50 percent represented a reasonable break point. The members of the RTAC represent the national leaders in reuse of reclaimed water. F.A.C. Rule 17-610.521(2) establishes a minimum 500-foot setback distance between the wetted areas of a reuse land application site and Class I and II surface waters of the state, reduced to 100 feet if high-level disinfection is provided. F.A.C. Rule 17-610.521(5) provides that setback distances to other classes of surface waters "shall be sufficient to provide reasonable assurance of compliance with applicable water quality standards." F.A.C. Rule 17-610.521(8) provides: The minimum setbacks . . . shall only be used if, based on review of the soils and hydrogeology of the area, the proposed hydraulic loading rate, quality of the reclaimed water, expected travel time of the ground water to the potable water supply wells and surface waters, and similar considerations, there is reasonable assurance that applicable water quality standards will not be violated. There is a valid reason for not establishing the same minimum setback distances between the wetted edge of percolation ponds and perimeter drainage features that collect reclaimed water after land application. Unlike reclaimed water that disperses and diffuses in the ground before a part of it reaches a water body solely through the ground, even though reclaimed water may travel through the ground for 100 feet before reaching perimeter drainage features, those features then collect and concentrate the resulting mixture of reclaimed water and groundwater for discharge into the surface water, typically at a limited number of discharge points and at higher volumes and flow rates. At some point as it migrates through the ground and mixes with other ground water, reclaimed becomes indistinguishable from naturally occurring ground water. It is, of course, difficult to pinpoint precisely how far from the wetted edge of a percolation pond this occurs.
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative 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 Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 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 Excavated is entitled to an MSSW permit pursuant to Chapter 373, F.S., and Chapter 40C-4, F.A.C., for the construction of a borrow pit and, if so, what if any conditions should be imposed on the permit.
Findings Of Fact The Parties Petitioner CROP is a Florida corporation. "CROP" is an acronym for the Committee to Resist Oppressive Politicians. Petitioners Geneva Defense Association and Save Our St. Johns are subcommittees of CROP. Petitioner Crabtree, who resides in Geneva, Florida, is chair of CROP and a member of the subcommittees. Petitioner Crabtree obtains his residential potable water from the Mullet Lake Water Association, which has employed Petitioner Crabtree as its water plant manager. The principal well of the Mullet Lake Water Association, which draws from the Geneva bubble described below, is about 500 feet southeast of the subject site. Respondents Veigle and Excavated Products (Applicant) have requested Respondent St. Johns River Water Management District (District) to issue a permit for the management and storage of surface waters (MSSW). Applicant proposes to excavate a borrow pit in northeast Seminole County about three miles south of the St. Johns River, three miles west of Lake Harney, 1.5 miles east of Lake Jessup, and four miles north of the Econlockhatchee River. The irregularly shaped parcel, which is about one mile northwest of Geneva, is bounded on the north and east by State Road 46 and the south by Cochran Road. Hydrogeology of Region and Site The parcel overlies a 22-square mile freshwater lens in the Upper Floridan aquifer1/ known as the Geneva bubble. The groundwater in the bubble contains chloride concentrations of less than 250 mg/l. The bubble, which is about 350 feet thick in the center of its recharge area, is surrounded by brackish relict seawater. The bubble's 15-square mile recharge area is marked by land elevations of at least 25 feet.2/ The subject site is situated just inside the northwest boundary of the recharge area. The Geneva bubble is dependent upon freshwater recharge from local rainfall, which flushes out ancient seawater from the Floridan aquifer. Greater recharge takes place at locally higher land elevations, which rest on more permeable sediments. A USGS study, "Hydrogeology in the Area of a Freshwater Lens in the Floridan Aquifer System, Northeast Seminole County, Florida," prepared by G. G. Phelps and K. P. Rohrer and published in 1987, describes the recharge process as follows: The Geneva freshwater lens is a result of local recharge that percolates downward from the surficial aquifer to the Floridan. Recharge occurs when water levels in the surficial aquifer are higher than the water levels in the Floridan (a downward gradient exists). The area enclosed by the 25-foot altitude contour . . . is where most of the recharge occurs. . . . In some areas of lower topography3/ the gradient is upward (discharge areas) whereas in other areas the gradient is downward, but the head difference between the surficial aquifer and Floridan aquifer system is slight and little recharge takes place. At [one] site, the vertical hydraulic gradient changes direction seasonally--upward during the dry season and downward during the wet season. * * * The water level or head difference between the two aquifers is not the only factor controlling recharge. Other important factors are hydraulic conductivity and thickness of the intermediate confining unit. The confining unit must be thin and permeable enough to allow appreciable recharge to the upper part of the Floridan. CROP Exhibit 44, page 20. The relationship of current topography to the Geneva bubble is underscored by the proximity of the bubble to the Geneva Hill. Separated by the St. Johns River from the Deland Ridge, Crescent City Ridge, and Palatka Hill to the north, the Geneva Hill and these three other geological formations run a distance of about 70 miles parallel to, and about 25 miles inland of, the current Atlantic shoreline. This ridgeline, which forms part of the Wicomico Shoreline, was probably formed about 100,000 years ago when sea level was about 100 feet higher than present. Local land surfaces less than 25 feet elevation were the most recently covered by seawater, which may explain the brackish water contained in the Floridan aquifer under these lower elevations. The hydrogeology of the region, including the site, consists of the surficial aquifer, which overlies the intermediate confining unit consisting of Miocene sediments. Beneath these confining sediments is the Floridan aquifer consisting of permeable limestone and dolomite beds. The water in the Floridan aquifer travels northeastward from prime recharge areas to discharge in areas along the St. Johns River. In areas of high land elevations (over 25 feet) centered around Geneva, the confining sediments are sandy and thus leaky. By contrast, the confining unit in lower areas may be relatively impermeable due to clay layers as thick as 20 feet. The high land elevations, where the Geneva bubble is recharged, feature a downward hydraulic gradient from the surficial aquifer to the Floridan aquifer and the absence of thick clay layers. Shallow lakes near the subject site replenish the Geneva bubble by collecting water that slowly percolates through the surficial aquifer to the Floridan aquifer. The rate of recharge may be affected by the fact that the water elevations of these lakes may vary dramatically from year to year and from wet- season to dry-season. On the other hand, the potentiometric surface water elevation of the Floridan aquifer in this area remains fairly constant over the long-term, although it varies about 5 feet seasonally. The preservation of the boundary between the freshwater lens and surrounding brackish water requires that the bubble receive sufficient freshwater recharge so that it can maintain an annual groundwater outflow of at least 10 inches annually. A year of little rainfall, such as 1981, may reduce the freshwater outflow to half the necessary amount. If the deficiency exists for a "number of years," the equilibrium between the freshwater and brackish water would be disturbed. CROP Exhibit 44, page 68. Groundwater withdrawals from the Geneva bubble total less than 5% of the bubble's average annual recharge. Although the rate of well pumping is increasing, withdrawals will not significantly exceed this percentage for several years. However, the freshwater outflow and recharge are finely balanced prior to consideration of the impact of withdrawals. Calculating 30-year averages, the USGS study discloses that the recharge available to the Geneva bubble is 10.8 inches annually and the groundwater outflow, exclusive of withdrawals, is 10.4 inches annually. For the years studied, 1981-82, the withdrawals totalled only 0.37 inches, so there was no significant change in groundwater storage. CROP exhibit 44, page 67. The critical balance between recharge and groundwater outflow for the Geneva bubble will become even finer with projected increases in withdrawals. The USGS study reports that, in 1981, total pumpage--all reasonably assumed to be from the Floridan aquifer--was 0.44 million gallons per day (MGD). This translates to 0.37 inches when distributed over the 22- square mile freshwater lens. The pumpage volumes were: Mullet Lake Water Association--0.02 MGD; Lake Harney Water Association4/--0.03 MGD; individual wells--0.18 MGD; and agriculture--0.21 MGD. CROP Exhibit 44, pages 65-66. The 1989 average daily flow for Mullet Lake and Lake Harney were 0.032 and 0.040 MGD, respectively, for a total of 0.072 MGD. The two utilities are predicted to pump, by 1996, 0.138 and 0.065 MGD, respectively, for a total of 0.203 MGD. CROP Exhibit 10, page 314. Additionally, Seminole Woods is pumping groundwater from the Geneva bubble a little over one mile southeast of the subject site. CROP Exhibit 10, page 63. The withdrawals attributable to Seminole Woods are 0.028 MGD in 1989 and 0.131 MGD in 1996. CROP Exhibit 10, page 314. Even assuming a constant pumpage rate for individual and agricultural wells, the total pumpage of the Geneva bubble in 1989 was 0.49 MGD, which is an increase of 11% in eight years. This translates to an annual withdrawal of 0.41 inches when distributed over the 22-square mile freshwater lens. By 1996, the total pumpage of the bubble, again assuming no change for individual and agricultural wells, will be about 0.724 MGD, which is an increase of about 45% in seven years. This translates to an annual withdrawal of 0.6 inches when distributed over the entire freshwater lens. Application for MSSW Permit By Individual Permit Application filed May 14, 1991, James K. Froehlich applied for an MSSW permit. The application describes the project as a borrow pit that, upon completion, would become part of a single family residential development. Following a request for further information, Mr. Froehlich's engineers, the Civil Design Group, provided additional information by response dated September 13, 1991. An accompanying letter dated September 12, 1991, discloses that the owner and applicant is now Excavated Products, which purchased the bulk of the property. The September 12 letter states that the project, now known as Froehlich Lake Estates, would produce no offsite discharge. The letter assures that the project would result in no dewatering of wetlands. The September 12 letter indicates that readings had been taken from four piezometers from April to September, 1991. The letter reports: As noted, the water table is fairly flat and at approximate elevation of +20.5 feet N.G.V.D. . . . Using this most recent site- specific data, we therefore estimate that the normal seasonal high water level of the proposed lake will be at approximate elevation of +20.5 feet N.G.V.D. This estimate supersedes the earlier estimate of +24.0 feet N.G.V.D. The estimated seasonal fluctuation of the water level is expected to be approximately 3 feet. There- fore, we will expect the water table to fluctuate from elevation +17.5 to +20.5 N.G.V.D. during the course of the year. Applicant Exhibit 2, page 3. The September 12 letter identifies only two culverts on the property. Running under State Road 46, both pipes are completely plugged with silty sediment. The letter indicates that none of the wetlands in the project area has any offsite connections, such as through wetlands vegetation or ditches. The September 12 letter represents that the project would have "no connection to Waters of the State." Applicant Exhibit 2, page 11. The only wetland upon which the project would encroach is the 0.24-acre Wetland E, as identified on the map described below. No mitigation is proposed because of the limited size of Wetland E and the fact that no other encroachments would take place. In response to a request for reasonable assurance that the construction of the borrow pit would not affect adversely the hydrologic functions of the wetlands in the area, the September 12 letter states: As mentioned previously, the estimated seasonal high water table elevation is +20.5 feet N.G.V.D. In wetlands adjacent to the lake at higher elevations, a clay core will be installed to hydrologically isolate the wetlands from the lower elevation lake. The details of the clay core will be submitted when additional borings are done along the wetland perimeter. Applicant Exhibit 2, page 9. The September 12 letter acknowledges that the Applicant does not intend to create a littoral zone or marsh creation. Onsite muck would be stockpiled and used to create the 6:1 slopes from the edge of the pit to about 3.5 feet below anticipated pool elevation. Applicant does not propose dumping offsite muck onsite. The Narrative portion of the September 13 response materials indicates that the normal high water was reduced from 24.0 to 20.5 feet based on new information, and the bottom of the excavation was raised from -20 to -17 feet to provide at least 15 feet of protection for the Floridan aquifer. Additionally, the Narrative notes that three groundwater monitoring wells would be constructed (one upgradient and two downgradient) to test monthly for level of groundwater, chloride, turbidity, Ph, and hydrocarbons. The hydrogeological information contained in the September 12 letter and September 13 response is largely derived from Jammal & Associates (Jammal). Jammal has studied the site from early 1989 through 1991. The September 13 response materials include a Jammal report dated April 17, 1991, concerning the location of the top of the limestone layer. Based on analysis of five test borings, the Jammal April 17 report determines that the top of the limestone layer and, thus, the Floridan aquifer is nearly flat on the site and ranges in depth from about -32 to -33.5 feet. The Jammal April 17 report concludes that the then- proposed excavation depth of -20 feet would leave a soils thickness of 12 to 16.5 feet between the bottom of the borrow pit and top of the limestone layer marking the top of the Floridan aquifer. Following another request for further information, Applicant provided additional information by response dated October 25, 1991, from the Civil Design Group, Inc. The October 25 response materials contain a new application from James P. Veigle, President. The new description of the project is limited to the construction of a borrow pit to yield fill for the construction of an expressway. The October 25 response materials include several diagrams and maps. All but one of these diagrams and maps are incorporated into the permit approved by the St. Johns River Water Management District (District).5/ The October 25 response materials include a post- development drainage map of the site. The map reports that the project site totals 111.3 acres, including a 36.5-acre proposed lake within a 55.2-acre borrow pit area, as measured from the dry top of the slope. The post-development drainage map depicts the site's wetlands, which total 22.6 acres. The wetlands and proposed pit are depicted in Appendix B.6/ Wetland A, which consists of 9.8 acres, is slightly west and north of the center of the site. Wetland B, which is on the north boundary of the project boundary just north of Wetland A, consists of only 0.67 acres. Wetland C, which is at the northernmost tip of the subject parcel, consists of 1.1 acres and abuts State Road 46. About 500-600 feet south and east of Wetland C is Wetland D, which also abuts State Road 46. Wetland D consists of 1.6 acres. Wetland E, which is just south of Wetland D, is slightly east of the center of the project. Wetland E, which would be excavated as part of the borrow pit, consists of 0.24 acre. Wetland F is in the southcentral part of the site and consists of 6.75 acres. Wetland G is south of Wetland F. Consisting of 2.64 acres, Wetland G was probably bisected at the property line by the construction of Cochran Road. The post-development drainage map contains a table describing each of the wetlands, which are all classified as isolated herbaceous wetlands. The plant species for Wetland A are willows, primrose willows, dogfennel, and blackberry with one acre of sawgrass, pickerelweed, and associated panicum grasses. Wetland B hosts sawgrass and panicum. Wetlands C and D are characterized by panicum and sedges with bay trees around the perimeter. Wetland E has panicum and primrose willow. Wetland F features maidencane, pickerelweed, sedges, juncus, bullrush, and dogfennel. Wetland G has panicum, sedges, and dogfennel with young cypress trees. The post-development drainage map indicates that significant areas of relatively land surface high elevations of about 50 feet exist immediately west of the north and west boundary of the site and immediately east of the south and east boundary of the site. The site itself features varying land surface elevations with greater slopes in the southeast and northwest corners. The post-development drainage map shows the direction of overland drainage. As at present, the site would continue to receive runoff at its northwest corner. The post-development drainage map represents that the proposed method of excavation is to dry mine until the water table is encountered and then to proceed deeper with drag lines or hydraulic dredging to the final proposed depth. Regardless of the method, "[n]o water will be withdrawn from the excavation pit or circulated. Water control berms will not be necessary as the depth of the water table will be below the rim of the excavation area at all times." Applicant Exhibit 3, Sheet 2 of 3, General Note 13. The post-development drainage map describes the groundwater monitoring wells, which would monitor the surficial aquifer. One well would be upgradient and two wells would be downgradient of the excavation area. Samples would be taken monthly and reported quarterly to the District and Seminole County for water level, chloride, turbidity, Ph, and hydrocarbons. Monitoring would begin 45 days prior to excavation below the water table. Applicant Exhibit 3, Sheet 2 of 3, General Note 19. The proposed monitoring well locations are shown on the post- development drainage map. MW-1 is at the 29-foot contour just off the right-of- way for Cochran Road at the southern tip of the property. MW-1 is within 100 feet west of Wetland G. MW-2 is between the 25- and 26-foot contours less than 50 feet south of Wetland C. MW-3 is between the 42- and 43- foot contours at the southeast corner of the site. MW-3 is about 500 feet east of Wetland F and 500 feet northeast of Wetland G.7/ The post-development drainage map shows that the slope of the pit would be 6:1 (e.g., one foot deep per six feet parallel to land surface) down to 3.5 feet below anticipated water level. At 17 feet elevation, the slope would steepen to 2:1. The map indicates that normal water level for the pit would be 20.5 feet. The October 25 response materials also include a cross-section diagram of the borrow pit. The cross-section shows the bottom of the pit at -17 feet, which means that the water depth of the pit would be 37.5 feet deep if the stabilized pool elevation is 20.5 feet. The cross-section depicts silt fences placed on the boundary of each wetland around which the pit would be excavated: Wetlands A, D, F, and G (except where no excavation would take place at the edge of Wetland G nearest Cochran Road and the edge of Wetland D nearest State Road 46). Except for the side of Wetland D facing the pit, the pit would be excavated to within 10 feet of each of the above-described wetlands boundaries facing the excavation. The October 25 response materials include an additional discussion of groundwater management prepared by Jammal. The report, which is dated October 14, 1991, restates the projection that the wet season pool elevation of the excavated pit would stabilize at about 20.5 feet elevation. The Jammal October 14 report observes that the pool might stabilize at a higher elevation during construction. The uncertainty as to the stabilized wet season water elevation of the filled pit is due to a number of factors set forth in the Jammal October 14 report. These include: The estimated seasonal high groundwater table elevation around the perimeter of the pond in the post-development condition. Potential for lateral groundwater inflow to and outflow from the pond from the surrounding aquifer. This potential is related to the upgradient/downgradient ambient seasonal high water table elevation, upgradient watershed, aquifer transmissivity, and hydraulic gradient upstream and downstream of the pond. * * * Increase in vertical groundwater inflow into or out of the pond as a result of reducing the thickness of clastic sediments between the water table aquifer and the subjacent aquifer (i.e., the intermediate aquifer of Floridan aquifer). Volume of stormwater entering the pond and rate of dissipation of stormwater via natural infiltration into the water table aquifer or filtration through underdrains or similar structures. Net of direct precipitation on the pool surface minus lake evaporation for the normal rainy season. Applicant Exhibit 3, Jammal report, page 1. If, during excavation, the pool were to stabilize at a higher elevation, the Jammal October 14 report recommends a minimum berm elevation of 25 feet to ensure that the borrow pit would not discharge into the wetlands. Ongoing monitoring would determine if a higher berm were needed.8/ The Jammal October 14 report does not address the possibility of a lower stabilized pool elevation for the filled pit. The Jammal October 14 report notes that water withdrawn during the startup dewatering would be contained onsite in a settling basin to allow infiltration back into the surficial aquifer. According to the report, the sandy soils in the area are very permeable, and rainfall would quickly infiltrate the ground surface before reaching the excavation. The discussion of the groundwater drawdown impacts in the Jammal October 14 report is dependent upon the projections of pool elevations of the pit during dredging and upon completion. The discussion of groundwater drawdown uses a 15- foot potentiometric surface of the Upper Floridan aquifer at the site. The Jammal October 14 report warns that reducing the water level in the pit below this elevation for a sustained period "may result in upward flow from the sensitive freshwater bubble in the Floridan aquifer." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report deals with the potential upwelling problem by noting that the normal seasonal high water elevation in the pit is projected to be about 20.5 feet. Based on the excavation process proposed, the Jammal October 14 report does not anticipate water levels falling below 17 feet. In any event, the Jammal October 14 report assures that the water level in the pit will be monitored "to ensure that no upward flow from the Floridan Aquifer is induced." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report states that the excavation will reduce the thickness of the sediments separating the water table aquifer from the Floridan aquifer by 37 feet, from 52 feet to 15 feet.9/ The 15-foot thickness of clastic sediments overlaying the limestones of the Floridan aquifer is "adequate for water quality treatment." Applicant Exhibit 3, Jammal report, page 5. But the 70% reduction in original thickness results in an increased downward gradient from the water table to the Floridan aquifer. The ensuing increase in recharge to the Floridan aquifer is "not detrimental," according to the Jammal October 14 report. However, the stabilized pool elevation may be reduced if the "magnitude of the upgradient shallow aquifer groundwater feed [into the filled pit] is not adequate to compensate for the increased vertical recharge within the excavation." The report continues: A normal pool elevation which stabilizes significantly below the pre-development groundwater table can affect the hydroperiods of the adjacent wetlands. Wetlands adjacent to the proposed excavation are at elevations ranging from +21 to +24 feet N.G.V.D. If we find adverse drawdown in the wetlands during Id. our monitoring program . . ., a clay core (or other acceptable method) will be used to hydrologically isolate the wetland from the lower elevation lake. The Jammal October 14 report adds that the flow of contaminants into the pit is "mitigated" by the fact that "stormwater flow directly into the excavation will be minimized." Id. The report restates that the water table is "fairly flat" and at an approximate elevation of 20.5 feet. The report thus concludes that the normal seasonal high pool elevation for the proposed borrow pit is estimated to be 20.5 feet. Because the estimated seasonal fluctuation in the water table is about 40 inches, the Jammal October 14 report projects that the water elevation of the filled pit will vary during the year from 17- 20.5 feet. The Jammal October 14 report describes a groundwater monitoring plan that involves devices in addition to the three shallow aquifer monitoring wells described above. A staff gauge in 0.1-foot increments would be placed in the pit and read twice daily during excavation. The records would be submitted at unstated intervals to the District and Seminole County. A Jammal representative would select locations for the installation of an undetermined number of shallow aquifer piezometers along the edges of the wetlands adjacent to the excavation. The Jammal representative would also select the location for the installation into the Floridan aquifer of an additional piezometer "[s]ince there is no site specific data on the altitude of the potentiometric surface of the Floridan aquifer and since the aquifer is subject to seasonal variation." Applicant Exhibit 3, Jammal report, page 6. During the first month of operation, the readings (to the nearest 0.1 foot) would be taken daily. Again, records would be submitted at unstated intervals to the District and Seminole County. The third element of the groundwater monitoring plan calls for on-site inspections by a Jammal "geotechnical engineer." At weekly intervals during the first month of operation and at unstated intervals thereafter, the engineer: will examine the quality of effluent reentering the pit, the operation of the settling pond, the integrity of the installed piezometers, and look for any signs of adverse groundwater impacts. The . . . geotechnical engineer will make written recommendations to mitigate any noted possible adverse groundwater impacts. The ... geotechnical engineer also reserves the right to make this plan more stringent if circumstances demand. Applicant Exhibit 13, Jammal October 14 report, page 7. Technical Staff Reports and Permit Conditions By letter to Mr. Crabtree dated November 20, 1991, the District advised that it would be considering the borrow pit application at a meeting on December 10, 1991. The letter contains a Technical Staff Report dated November 27, 1991, and a Notice of Rights. The November 27 Technical Staff Report (TSR-1) describes the proposed project, identifies Mr. Veigle as the applicant, mentions Lake Cochran as a receiving waterbody, and otherwise sufficiently describes the project so that Mr. Crabtree and other interested persons would know that the Board would be considering the borrow pit project. Describing the wetlands, TSR-1 notes: At the time of the field inspection, water depths within the wetlands varied from several inches to several feet. The water levels within the wetlands are dependent on the fluctuations of the Floridan Aquifer. The vegetation and condition of such wetlands change seasonally and annually, due to differences in the amount of rainfall and the degree of recharge. Applicant Exhibit 13, page 5. Concerning the impact of the proposed excavation on the wetlands, TSR- 1 states: No impact is proposed on the remainder of the 22.4 acres of herbaceous wetlands [other than the excavation of 0.24-acre Wetland E] within the project boundary. District Staff does not anticipate that drawdown will occur within the adjacent wetlands, due to the absence of a confining layer within the project area, and the method of construction proposed (no dewatering offsite). The 0.2 acre wetland [Wetland E] is below the threshold for review, as set forth in section 10.7.4, [Applicant's Handbook]. Applicant Exhibit 13, page 5. TSR-1 approves the use of a dry detention pond and swales to control stormwater runoff. Although located in the 100-year floodplain, the proposed project, according to TSR-1, would not adversely affect the storage capacity of the floodplain because no fill would be added to the floodplain. TSR-1 does not address in any detail the impact of the proposed project on the Geneva bubble. TSR-1 states that Applicant originally proposed to leave only 10 feet of confining sediments over the Floridan aquifer, but, due to concerns expressed by the public and comments from District staff, Applicant agreed to leave a minimum separation of 15 feet. TSR-1 contains 11 conditions. Condition 1 is that the permit expires December 10, 1996. Condition 3 is: "The permittee must obtain a General or Individual permit from the District prior to beginning construction of subsequent phases or any other work not specifically authorized by this permit." Applicant Exhibit 13, page 6. Incorporating as a condition the maps and diagrams discussed above, TSR-1 concludes that the proposed project is consistent with the requirements of Chapters 40C-4 and 40C-42. The accompanying Notice of Rights informs the recipient: A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition with the [District] within 14 days of receipt of notice of the District's intent to grant or deny a permit application . . .. A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition in the office of the District Clerk within 14 days of receipt of notice of final District action on a permit application, as provided in [Rule] 40C-1.511 . . ., if the Governing Board took action which substantially differs from the notice of intent to grant or deny the permit application, or if a substantially interested party did not receive notice of the District's intent to grant or deny the permit application. Applicant Exhibit 13, page 8. The certificate of service shows that the District mailed Mr. Crabtree a Notice of Rights on December 2, 1991. Mr. Crabtree received the Notice of Rights and TSR-1 on December 6, 1991--four days before the scheduled December 10 District meeting. On December 10, 1991, the District mailed to Mr. Crabtree another letter, Technical Staff Report (TSR-2), and notice of rights, which Mr. Crabtree received December 12, 1991. The December 10 cover letter informs Petitioner Crabtree that the enclosed TSR-2 "constitutes a notice of the District's intent to grant or deny the application. Please refer to the enclosed notice of rights to identify any rights that you may have regarding the proposed agency action." Applicant Exhibit 13, page 10. TSR-2 is identical to TSR-1 except for the addition of three new conditions pertaining to the impact of the excavation and operation of the borrow pit on groundwater. These conditions are: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991.10/ The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. No excavation can occur below elevation +0 ft NGVD until the permittee submits a water budget analysis, based on at least two years of data collection from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands. Applicant Exhibit 13, page 15. At the District Board meeting on December 10, 1991, the Board agreed to issue the MSSW permit, but added more conditions. The record is unclear as to what conditions were added and when they were added. It is clear, though, that the Board at the December 10 meeting expanded upon Condition 14 in TSR-2 by dividing the excavation project into two phases and, as noted below, required further review prior to excavation of the land following the first phase. On December 23, 1991, Petitioners filed the petition with the District challenging its intent to issue the MSSW permit. A Technical Staff Report dated April 20, 1992 (two days before the final hearing commenced) (TSR-3) incorporates the conditions of the MSSW permit approved by the Board on December 10, 1991. Restating the introductory language and Conditions 1- 11 contained in the prior TSR's, TSR-3 states the following conditions:11/ During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 14. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 134. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a water budget analysis, based on at least two years of data collection supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 145. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. 16. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of a revised construction plan, including contractor notes on mining operation, to comply with this permit. The permittee must obtain District written approval of the revised plan prior to starting any construction. Applicant Exhibit 4, pages 4-5. Area A, which is depicted in the diagram attached as Appendix B, covers a little more than half of the original area proposed for excavation. Area A includes the easterly side of the proposed pit and continues to abut State Road 46 and Wetland D. However, Area A does not approach as closely Wetlands A and F and imposes a setback of at least 100 feet from Wetlands A and F. This setback would not apply once excavation began following the completion of the deeper pit in Area A and shallower pit in the remainder of the original pit except for the 100-foot setback from Wetlands A and F. A Technical Staff Report dated April 29, 1992 (TSR-4) (the last day of the hearing), was prepared to indicate the language of the conditions that District staff determined would be necessary after considering the evidence presented at the hearing. Although referred to as TSR-4, it would appear that the TSR form was adopted for ease of reference and District staff was not issuing TSR-4 as a formal TSR. TSR-4 makes the following changes to TSR-3: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The maximum interval for data collection is monthly weekly. An additional shallow aquifer piezometer and staff gauge must be installed at a "reference site" to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer monitoring location. Monthly Weekly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year or longer after Area "A" is completed until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14 complete the water budget analyses as required by conditions 15, 16 and 17. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. Prior to starting construction (borrow operation), the permittee must install a staff gauge and piezometer, referenced to NGVD datum by a registered land surveyor, in wetlands "A", "B", "C", "D", "F" and "G". The permittee must monitor the water level at each wetland monitoring station and at the "reference site" located outside the influence of the borrow pit (as required under Permit Condition 12b.) on a weekly interval. This monitoring [must occur for a period prior to starting construction approved by the District as sufficient to establish a baseline comparison between the reference site and each monitored wetland. Monitoring must]12/ continue until construction is completed. The permittee must submit this monitoring data for each month to the District's Orlando office by the end of each calendar month. The permittee must provide one surveyed transect each in wetlands A, G and F. The transects will be located as shown on Exhibit 1. The ground elevations and surface water elevations referenced to N.G.V.D. must be submitted as a part of the certified survey, prior to starting construction. The survey must be conducted and certified by a surveyor registered in the State of Florida. 135. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. The limits of Area "A" must be at least 100' from the boundaries of wetlands A and F as such wetland boundaries are shown on the Post Development Drainage Map prepared by the Civil Design Group dated July 1991 and received by the District on October 25, 1991. bc. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 146. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". cd. Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. de. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD, until sufficient data exists to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the borrow pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 146. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a District- approved water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD until [sic] sufficient data existing to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 ft radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 157. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the water level in the pit during a normal rainfall year will not be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. If at any time during construction (borrow operations), the measured water level in any of the wetlands, as adjusted for any difference observed with the "reference site" during pre-construction monitoring, is 0.5 ft. below corresponding water level in the "reference site", the permittee must immediately cease the borrow operation until the relative difference in water level between each monitoring site and the reference site is no more than 0.5 ft. The limit of borrow operation must be at least 200 feet from any septic tank drain field. Prior to construction, the permittee must submit to the District a map delineating the location of all septic tanks and septic tank drain fields within 500 feet of the property boundary. The permittee must maintain a continuous berm at elevation 27.0 ft NGVD between wetland "D" and the borrow pit during construction and operation of the project. A minimum berm width of four (4) feet must be maintained. 1621. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of the following: a revised construction plan, including contractor notes on mining operation, to comply with this permit; and, a detailed plan for the water budget analysis, including all methodologies and data to be used. The permittee must obtain District written approval of the revised plan prior to starting any construction. Impact of Proposed Borrow Pit and Adequacy of Permit Conditions Contamination of Floridan Aquifer Petitioners allege that excavation of the pit would facilitate the introduction of various pollutants into the Floridan aquifer. The potential sources of pollutants are a nearby sprayfield, possible septic tank drainfields, and general stormwater runoff. Regarding the sprayfield and possible septic tank drainfields, the issues involve surface water runoff and groundwater movement. Petitioners assert that the stormwater runoff problems would be exacerbated by the location of the subject site in the 100-year floodplain. Two of these issues require little consideration. Nothing in the record suggests that effluent from any septic tanks in the area would flow onto the subject site or, if so, into the pit, regardless whether the flow were on the surface or in the ground. In any event, Condition 19 adequately addresses the septic tank issue, to the extent that one exists. The principle source of polluted stormwater runoff onto the subject site is State Road 46, which drains into Wetlands C and D. Wetland D would abut the pit, but Condition 20 requires the construction of a berm at elevation 27 feet between the wetland and the pit to protect the latter from runoff. There is some evidence of agricultural activity in the area, but the evidence is insufficient to determine the volume and composition of the agricultural runoff or the direction of its flow. The subject site is located in the 100-year floodplain. However, Applicant does not propose the introduction of any fill, so the floodplain functions in terms of storage and conveyance should not be substantially affected. The evidence concerning agricultural activities and septic tanks is insufficient to determine that floodwaters would necessarily carry livestock wastes, fertilizers, insecticides, herbicides, and septic tank effluent into the borrow pit. As noted below, sprayfield operations will cease during storm events, Thus, the design of the borrow pit, including the berms and Condition 20, adequately address the issues of the floodplain and runoff from the 100-year storm event. The sprayfield raises the only serious pollution issue. A reclaimed- water sprayfield owned and operated by the City of Sanford will be located on a large parcel abutting the northwest boundary of the subject parcel. Consisting of nearly 900 acres of hay fields and citrus groves, the sprayfield will receive 2.84 million gallons per day of tertiary-treated domestic wastewater with, according to the DER permit, "high level disinfection for reclaimed water delivered to the reuse system." Drainage from the southeast corner of the sprayfield is in the direction of the subject site. The flow in the shallow aquifer below the southeast corner of the sprayfield is also in the direction of the subject site. The citrus groves will be located on the portion of the sprayfield nearest the subject parcel. The sprayfield was permitted on April 15, 1991, and is still under construction. The conditions of the sprayfield permit are stringent in terms of requiring back-up equipment and operating personnel. Permit conditions demand a reduction in total suspended solids to not more than 5 mg/l and the maintenance of 1 mg/l total chlorine residual after a minimum contact period of 15 minutes. By these two parameters, the permit indirectly undertakes the complex process of viral monitoring; no direct monitoring of viral agents will be attempted. The micro-jet irrigation system applies the reclaimed water in no more than a two-foot radius beneath each citrus tree so as to minimize the possibility of runoff. The rate of application is low--0.8 to 1 inch per week. The soils in the area are highly permeable, especially at the higher elevations where, otherwise, reclaimed water runoff would be a greater risk. The land application system will not be operated during storm events. Some of the reclaimed water will be lost to evaporation. The majority of the reclaimed water will be transpired by the trees while the water is still in the root zone above the water table. The remainder of the reclaimed water will percolate into the shallow aquifer. The primary direction of travel for this reclaimed water is vertical through the confining layer and into the Floridan aquifer, not lateral within the shallow aquifer. As the reclaimed water migrates through the confining layer between the shallow and Floridan aquifers, additional contaminants will be filtered from the reclaimed water or simply fail to survive during the length of time required for the water to reach the Floridan aquifer while percolating through the undisturbed, relatively thick confining sediments. The excavation of the borrow pit would create a downgradient that will attract the reclaimed water that moves laterally. Any portion of the reclaimed water that proceeds directly into the Upper Floridan aquifer beneath the pit without passing through the pit would traveled through a longer section of the confining layer (given its diagonal path) than the reclaimed water percolating into the Floridan aquifer directly below the sprayfield. Nothing in the record establishes that the reclaimed water percolating straight down beneath the sprayfield threatens the quality of the water in the Floridan aquifer. A portion of the reclaimed water will enter the shallow aquifer and then be discharged into the borrow pit, rather than pass from the shallow aquifer through the confining beds and into the Upper Floridan aquifer. The reclaimed water reaching the Upper Floridan aquifer from the borrow pit will not travel through as much confining sediments as will the reclaimed water passing straight into the Upper Floridan beneath the sprayfield. The reclaimed water will encounter relatively little resistance while traveling laterally through the shallow aquifer. Due to the 70% reduction in confining sediments, the reclaimed water entering the Floridan aquifer from the pit will also encounter less resistance than will the reclaimed water traveling straight down from the sprayfield. However, the reclaimed water is heavily treated, released in controlled quantities (adjusted for rainfall), applied in a manner designed to maximize elimination by evapotranspiration, and carefully monitored (notwithstanding the indirect monitoring for viral agents). Applicant has provided reasonable assurance that surface runoff and groundwater movement from possible septic tank drainfields, surface runoff from the sprayfield, and general surface runoff of stormwater--notwithstanding the location of the pit in the 100-year floodplain--will not adversely affect the Floridan aquifer. Applicant has provided reasonable assurance that the location of the borrow pit in the 100-year floodplain will not adversely affect the drainage functions of the floodplain. The question of sprayfield contaminants entering the pit from the surface aquifer and then entering the Floridan aquifer is considered at the end of the next section. Wetlands and Hydraulic Conductivity The remaining issues involve the wetlands and, as Petitioners allege it, the hydraulic conductivity of the overburden left after excavation. The latter issue raises questions of recharge or discharge of the shallow and Upper Floridan aquifers because recharge and discharge rates are a function of the hydraulic conductivity of confining beds, thickness of confining beds, and head difference between the surficial and Floridan aquifers. The wetland and hydraulic conductivity issues are intertwined due largely to the question of what would be the stabilized water table elevation, and thus pool elevation of the filled pit, following excavation. The primary threat to the wetlands is due to dewatering, which requires consideration of the impact of the proposed excavation upon the water table. However, mitigation conditions focusing directly upon the impact to wetlands of a lowered water table do not necessarily address the question of recharge implicit in the hydraulic conductivity issue. Wetlands A key factor concerning the wetland issue is the condition of each wetland, which in turn affects the functional value of the wetland. In this case, the primary function is that of providing habitat. This function can be impaired or eliminated by any disturbance of the timing or quantities of water delivered to or taken from the wetland. In fact, the wetlands are not all in the same condition and none of them is in superior condition. Wetlands B, C, D, and E (which is to be excavated) are of little value. In particular, Wetlands C and D, which receive polluted runoff from State Road 46, have suffered from the invasion of many undesirable plant species. Wetland B tends to remain dry even when the other on-site wetlands are inundated. When other wetlands have as much as 30 inches of water in them, Wetland B has only a thin veneer of water. Wetlands B and C are quite small. Wetland E shares most of these negative attributes and is also the smallest. Wetlands A and G are of the highest relative value. Wetland F, which is a high prairie and, thus, different from the others, maintains a fair functional value, although not as high as the functional values of Wetlands A and G. Wetlands A, G, and F are the three largest wetlands, with Wetlands A and F constituting about three-quarters of the wetlands acreage on the site. Wetland A, which is 9.7 acres, has suffered an invasion of woody vegetation extending through its northern one- third to one-half. Partly due to its significant water levels, Wetland A has potential as nesting habitat for the sandhill crane. Wetland A had at least 24 inches of water at its fringe and more toward the center during the dry months this year. The more inundated portion of Wetland A is the part of the wetland closest to the edge of the pit. Wetland G, which is 2.64 acres, also has potential as nesting habitat for the sandhill crane, again partly due to its significant water levels. In the absence of unusually high water elevations, Wetland G is no longer connected with the wetland south of Cochran Road or, thus, with Lake Cochran, which is located south of the wetland across Cochran Road. Wetland G contains an area of standing water for extended periods with water depths exceeding 36 inches prevailing in the center of the wetland. Wetland F, which is 6.75 acres, also enjoys significant water levels and contains a deep hole in the middle of the wetland where water can usually be found throughout the year. Even during the dry months, as much as two acres of Wetland F remain inundated. During the rainy season, Wetland F may contain as much as 30 inches of water across much of its surface. Both sides of Wetland F would be within 10 feet of the edge of the pit, and, according to the cross-section diagram, Wetland F would be separated from the pit by only a silt fence (no berm). This is because Wetland F, as a high prairie, is at elevation 25 feet. Both sides of Wetland A would be about 30-40 feet from the edge of the pit. Wetland A would be separated from the pit by a silt fence and a berm. The side of Wetland G opposite Cochran Road would be about 20 feet from the edge of the pit. Due to the relatively high elevation of this end of Wetland G, only a small berm and a silt fence separate this side of Wetland G from the pit. Wetland D would be in a valley between State Road 46, which crowns at nearly 30 feet, and the edge of the pit, which, originally proposed at 25.5 feet, is now proposed to reach 27 feet under Condition 20. The side of Wetland D nearer the pit is about 50 feet distant from the top of the pit. This side of Wetland D is at 24 feet. The functions presently performed by the on-site wetlands would not be adversely impacted, transitory or long term, by a maximum transitory drawdown (during construction) of no more than 0.5 feet, as permitted by Condition 18, or the destruction of Wetland E. Hydraulic Conductivity As noted above, the dewatering question, which involves the wetlands issue, also involves the issue of the hydraulic conductivity of the post- excavation overburden. However, the reasonable assurance provided by Condition 18 with respect to the wetlands does not necessarily extend to the matters raised by the issue of hydraulic conductivity. The issue of hydraulic conductivity raises the question of the impact of the proposed project on the Upper Floridan aquifer, especially with respect to the exchange of groundwater between, on the one hand, the pit, into which the surficial aquifer will discharge, and, on the other hand, the Upper Floridan aquifer or, at this location, the Geneva bubble. The various projections of water elevations for the wetlands and the transient and stabilized pool elevations for the borrow pit are arrayed against a background of conflicting evidence offered by expert hydrogeologists called by the three parties. There are serious questions concerning the models, assumptions, and data inputs used by the experts to project water elevations in the pit, adjacent water table, and wetlands. Reaching conflicting conclusions on some matters and no conclusions at all as to other matters, the expert witnesses in the case apply various well-recognized laws of hydrogeology to an incomplete data set of hydrogeological conditions prevailing at the subject site. In many cases, assumptions based on regional conditions replace missing, site-specific data. There is an clear lack of reasonable assurance concerning certain key aspects of the hydraulic conductivity issue. The USGS Modflow model employed by the experts for the District and Petitioners (to yield conflicting results due to different values for leakants inside the pit) is itself rejected by the Applicant's expert, who is an employee of Jammal. Applicant's expert, who has considerable experience with the model, indicates that the USGS Modflow model is unsuitable in this case because, among other things, it assumes a relatively flat water table. The assumption of a flat water table is incorrect and the suitability of the USGS Modflow model for this pit is doubtful. At the subject site, the water table tends to follow the grade of the ground surface, and the subject site contains a sloping terrain. Unfortunately, the source of the misinformation concerning the gradient of the water table was the Jammal October 14 report, which inaccurately describes the water table as "fairly flat."13/ The faulty assumption concerning the gradient of the water table may understate the water table impact in the downgradient direction and overstate the water table impact in the upgradient direction. The USGS Modflow is a powerful model. The degree of error contained in faulty data inputs or assumptions may be multiplied in final results. As conceded by the District in its proposed recommended order, "neither [expert's] groundwater flow model was calibrated using test data from the site." District's Proposed Recommended Order, Paragraph 52. Significantly, the District's expert admits that he would have liked to have a value for recharge to the Floridan aquifer. Applicant's expert testified that useful tests would include, with respect to each wetland, a pump test for leakage, a slug test, and the installation of a piezometers and auger borings. At least certain of these data would be obtained under TSR-4, but not until Area A and the shallow remainder of the pit have been excavated and the required monitoring begins. District's Proposed Recommended Order, Paragraph 53. The inadequacy of the data, especially in view of the power of the modelling tool, undermines the reliability of the modelling results, as does the incorrect assumption concerning the water table gradient. Questionable assumptions different at the subject site--displace site-specific data so as to reduce materially the reliability of the ensuing analysis.14/ The reliability of the hydrogeological projections in this case is undermined somewhat by the disagreement between the experts for the Petitioners and District, who used the USGS Modflow model, and Applicant's expert, who rejected the model. The reliability of the hydrological projections is further undermined by a fundamental disagreement between the District's experts as to the impact of the proposed project on the water table. The District expert who spent considerable time and effort in analyzing the application is a Hydrologist III, who has been employed by the District for five years. He testified that the pit would not substantially lower the water table. The subject application was initially reviewed for about one and one- half hours by the Director of the District's Department of Ground Water Programs and Technical Support. Employed by the District for 17 years and in charge of 11 hydrogeologists or engineers, the Division Director disagreed with the Hydrogeologist III. The Director instead concluded that the excavation would necessarily result in lower water elevations than Applicant and Jammal had projected. The Division Director based his conclusion on a largely intuitive analysis of such factors as the elevation of the water table, depth of the borrow pit, and potentiometric surface of the Floridan aquifer. In fact, Applicant's expert also employed an intuitive approach in part in determining that the proposed project would not dewater the on-site wetlands. Although in this case more reliable than the modelling work, the intuitive approach is necessarily preliminary in nature. Moreover, Applicant's expert made assumptions that cast into doubt some of his conclusions. One problem is the attempt by Applicant's expert to estimate the water table elevation for 98 points around the proposed borrow pit. This would measure the depth from the surface of the ground to the seasonal high water table. Applicant's expert identified four sources of data for this work. One of these was the Soil Conservation Soils map, which, due to the large scale involved, is a poor substitute for soil classifications based upon soils samples taken from the site itself. Another source used by Applicant's expert was site-specific topographical information including the wetlands elevations. This information included or culminated in an estimate that the water table was one foot over the floor of the wetlands. For this information, Applicant's expert relied on information supplied by the biological experts employed by Petitioners and Applicant. However, elevation data of this type supplied by biologists were not sufficiently reliable for the purposes used. A second problem in the intuitive approach of Applicant's expert involves his assumptions concerning the friction of the excavated overburden versus the remaining overburden. Applicant's expert took 16 feet as the value for the potentiometric surface of the Upper Floridan aquifer. He then took 26.3 feet (rounded off to 26 feet) as the top of the water table, which itself may be suspect due to its derivation in part from the data described in the immediately preceding paragraph. Tentatively assuming that the water elevation of the stabilized pit would be 26 feet, Applicant's expert then calculated a head difference of 10 feet between the stabilized pool elevation and the Upper Floridan aquifer. By calculating the effect of the removed overburden on head difference, Applicant's expert projected the final pool elevation, as adjusted for the removed overburden. The process requires that the original head difference be multiplied by the percentage representing the friction or resistance of the remaining overburden when compared to the friction or resistance of the original overburden. The new head difference is then subtracted from the stabilized pool elevation to yield a truer stabilized pool elevation. The process is clearer when illustrated. Petitioners' expert estimated that the removal of 70% of the overburden removed 70% of the friction or resistance offered by the confining layer to migrating groundwater. This assumes that the friction or resistance of the confining sediments is unchanged with depth. If the original head difference were 10 feet (26 feet assumed unadjusted stabilized pool elevation minus 16 feet potentiometric surface of Floridan aquifer), then the friction or resistance remaining in the unexcavated overburden less than the original head difference of 10 feet. Subtracting the assumed unadjusted pool elevation of 26 feet by the head difference of seven feet means that the true stabilized pool elevation would be 19 feet. Applicant's expert altered the above-described calculations in a manner not justified by the record. He opined that the friction or resistance of the confining soils nearest the limestone top of the Upper Floridan aquifer was greater than the friction or resistance of the confining sediments closer to the surficial aquifer. Estimating that the remaining 15 feet of overburden had 45% of the friction or resistance of the original 52 feet of overburden, Applicant's expert determined a head difference of 4.5 feet, which is 5.5 feet less than original head difference of 10 feet. Thus, the true stabilized pool elevation would be 20.5 feet (26 feet less 5.5 feet), according to Applicant's expert. Again, the absence of site-specific data undermines the validity of conclusions based on logical analysis. The regional experience of Applicant's expert supports his adjustment to friction, but this experience is unrelated to the site in question. Other sources in the record support the regional existence of such a phenomenon. But the available site- specific data do not suggest that regional characteristics apply to the subject site, and, on balance, the record compels a conclusion that Petitioner's expert was correct in assuming a proportional relationship.15/ There are site-related hydrogeological questions for which, notwithstanding the existence of powerful models, scientific laws, and capable experts, sufficient data do not exist to provide reasonable assurances. As noted above, data do not exist concerning the present recharge rate of the Floridan aquifer at the site. Data concerning the potentiometric surface of the Floridan aquifer at the site are variable, reflecting perhaps seasonal changes or the necessary inexactness of measurements. Applicant's expert used 16 feet at the hearing, which he indicated was from the Ardaman report used in connection with the sprayfield application. Ardaman reports a potentiometric surface of 16.2 feet, although the report warns that the number may vary somewhat. Applicant Exhibit 11, Tab 2, page 5. As the February 13, 1990, Jammal report notes, the pressure head of the Floridan aquifer--at the proposed site One of the predicted effects of the sprayfield operation is to increase the recharge of the Floridan aquifer due to the introduction of more water into the surficial aquifer with the effect of raising the water table. This is the conclusion of the Law Environmental report dated January 10, 1989 (Applicant Exhibit 11, Tab 1, page 23) and the Ardaman report dated November 14, 1988. The Ardaman report states: An increase in deep recharge to the Floridan aquifer at [the sprayfield] site results from the rise of the groundwater level caused by increased recharge to the surficial aquifer. The magnitude of deep recharge increase is a function of the increased head in the surficial aquifer and the permeability of the confining layer. Applicant Exhibit 11, Tab 2, page 13. Both of these reports were prepared by an engineering firm handling the sprayfield project. The same engineering firm also became involved in the subject application when it sent Jammal a letter dated February 21, 1990, asking three questions. The February 21 letter to Jammal asks: What potential aspects of intermixing of surface waters into the aquifer might be involved due to the reduction of thickness of the aquaclude resulting from the lake construction? As you know, the aquaclude could be thinned appreciably by the lake construction and thus the hydraulic path length, and, therefore, head loss between the two minimized and some potential of pollution of the aquifer by surface waters may occur. Are there upwelling concerns due to the reduction of the aquaclude thickness? Is it likely that the potentiometric surface of the aquifer at elevation 13 and the proposed pond bottom at elevation -20 might cause breaching of the thinner layer of aquaclude postconstruction and thus intermixing of the two zones. What might the long-term effects on the shallow ground water table both on and off site be? Reduction of the aquaclude thickness may cause the aquaclude at that particular location to leak more readily, thus, the lake level of 24 proposed on our plans may not be maintainable and a lower lake level might result. This in turn may create a hydraulic gradient which would affect the shallow ground water table both onsite, in terms of viability of wetlands, and offsite in terms of both viability of offsite wetlands as well as potential drying up of shallow wells on onsite properties. ... Applicant Exhibit 9, Tab 6, In response to the first question, the Jammal letter, which is dated March 1, 1990, notes that the only source of contaminants would be stormwater runoff. The Jammal letter reports that the District had previously determined that a three- foot sand bottom was sufficient in the Ocala area for filtration prior to water entering underlying limestone formations. The answer concludes that "due to the sensitive nature of water supply in the vicinity of the site [and the ensuing scrutiny to be given the proposed separation of 7-10 feet], . . . it is our opinion that any increase in separation distance between lake bottom and the underlying aquifer will be better." Applicant Exhibit 9, Tab 6. With respect to the second question concerning "upward vertical leakage," the Jammal letter discusses the vertical leakage during lake excavation and dewatering. The response notes that dewatering is now limited to 0 feet,16/ after which wet excavation must take place through draglining or hydraulic dredging. Later, the Jammal letter asserts: "The intermixing of waters between the aquifers is not considered to be a problem since natural seepage of groundwater from the surficial aquifer to the Floridan aquifer will not be altered except during dewatering and excavation." Id. The Jammal response to the third question mentions stabilized pool elevations of the filled pit, as discussed above: The potential for long term lowering of water level in the excavated lake is a concern at this site due to a reduction in the hydraulic barrier between the shallow aquifer and the underlying Floridan aquifer. The current hydraulic head difference of approximately 12 feet between the two (2) aquifers is the result of head losses between the surficial aquifer to the underlying Floridan aquifer due to groundwater seepage. The primary head loss is anticipated to occur in the sands and clayey sands of the shallow aquifer. Theoretically, removing approximately two- thirds of these sands may decrease the hydraulic head difference by as much as two- thirds. Consequently, the hydraulic head between the two aquifers may create a stabilized lake level 4 to 5 feet above the potentiometric surface elevation (+17 to +18 feet NGVD). In reality, the theoretical proportioning presented herein may not be accurate. In order to estimate this potential head difference, a piezometer can be installed with a screen interval extending from the bottom of the clayey sands to the bottom of the lake excavation. The piezometer will need to be grouted in order to isolate this clean zone and measure the new potential head elevation at that depth. In this manner, it will be possible to evaluate the potential stabilized lake level more accurately. If the lake level stabilizes at elevations of +17 to +18 feet NGVD, it will create a cone of depression around the lake. Specific modelling was not conducted at this time to determine the exact extent and shape of the cone of depression. However, based on our preliminary evaluation, we estimate that the cone of depression may extend laterally 400 to 500 feet around the perimeter of the lake. Therefore, if existing wells are installed into the shallow aquifer and are located within this cone of depression, the water level in the wells may be expected to decline 1 to 4 feet depending on the location of the well. Wells located outside the 500 foot area surrounding the lake should not experience a drawdown effect from the long term drawdown of the lake. Applicant Exhibit 9, Tab 6. The three responses involve the issue of the hydraulic conductivity of the overburden remaining after excavation. The first answer, which concerns filtration, acknowledges that more separation means more filtration. Although more separation was later added to the proposal, the letter offers no guidance as to the practical limits of this principle. The second response is unsatisfactory and unsupported by the record. It defies logic to assert that the removal of 70% of the overburden does not "alter" the "natural seepage of groundwater from the surficial aquifer to the Floridan aquifer," even without regard to transient alterations taking place during excavation itself. The District's witness primarily responsible for the subject application alluded to this deficiency when he testified that he would like information concerning the recharge rate to the Floridan aquifer. A sufficient disturbance to the present hydraulic relationship could produce a spring-fed borrow pit, as the Floridan aquifer could seep into the pit if enough confining soils are removed and head difference between the aquifers (or the Floridan aquifer and free water of the pit) is lost.17/ The third response addresses an issue that has been considered at length above. The response rather casually acknowledges the possibility of a stabilized pool elevation for the filled pit of 17 to 18 feet and fails even to attempt to quantify the extent to which confining soils may offer more resistance closer to the limestone formation of the Floridan aquifer. The response identifies a means by which to estimate the potential head difference and readily concedes the possibility of a 1-4 foot reduction in the water table elevation extending a distance of 400-500 feet from the filled pit. Although these estimates and projections might have been refined by the time the response materials were submitted in the fall of 1991--about 18 months later--Jammal continued to project even then a stabilized pool elevation of only 20.5 feet, as contrasted with the testimony at hearing of Applicant's expert, who is an employee of Jammal, that the stabilized pool elevation would be higher. As discussed in the Conclusions of Law, it is possible to divide the proposed project into two phases. The first phase (Phase I) is the excavation of a little more than half the original proposed pit to an elevation of 0 feet, which would mean the removal of about 20 feet of overburden, rather than 37 feet as originally proposed. The remainder of the original pit, except for a wetland setback of 100 feet, would be excavated during Phase I, but only to an elevation of 21 feet, which would mean the removal of no overburden.18/ The second phase (Phase II) is the excavation of an additional 17 feet from Area A, 38 feet from the already- excavated area outside Area A (including 37 feet of confining sediments), and 52 feet of confining sediments from the area outside Area A within the Phase I 100-foot wetland setback. Based on TSR-4 with the six-inch drawdown provision, Applicant has provided reasonable assurance in all respects that excavation of Phase I will not adversely affect the Upper Floridan aquifer. The record fails to provided a basis for serious concern that removal of about 38% of the overburden from a little more than half of the original pit area will so disturb the hydraulic relationship between the Upper Floridan and surficial aquifers as to allow possible sprayfield contaminants to enter the Upper Floridan aquifer, or Geneva bubble at this location, or adversely alter the current recharge rate to the Upper Floridan aquifer or Geneva bubble. There are various factors underlying the reasonable assurance provided by the record as to the contamination and recharge issues through Phase I. First, as to the contamination issue, based on the record, it is unlikely that contaminants will reach the Upper Floridan aquifer through the pit and it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer. Because of the unlikelihood of contaminants traveling through the surficial aquifer and entering the pit coupled with the unlikelihood of any such contaminants reaching the pit passing through the relatively thick confining sediments, Phase I excavation leaves a wide margin for safety within which the hydrogeological limitations of the record do not raise a serious concern. Second, as to the recharge issue, based on the record, it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer and, notwithstanding the proximity of the wells of the Mullet Lake Water Association and Seminole Woods, it is unlikely that the small area covered by the pit relative to the area of the Geneva bubble or even its smaller recharge area would disturb the water budget on which the Geneva bubble depends for recharge to maintain its freshwater properties. Because of the unlikelihood of a significant impact to the site's recharge capacity coupled with the unlikelihood of the relatively small area of the pit disturbing withdrawals from the Geneva bubble, Phase I excavation leaves a wide margin for error within which the hydrogeological limitations of the record do not raise a serious concern. Based on TSR-4 with the six-inch drawdown provision Applicant has not provided reasonable assurance that excavation of Phase II will not adversely affect the Upper Floridan aquifer. The elimination of the additional overburden likewise eliminates the above-described margins of error within which the hydrogeological limitations of the record could, in effect, be ignored.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Governing Board of the St. Johns River Water Management District enter a final order denying the issuance of TSR-4, with the six-inch drawdown, for Phase II and approving the issuance of TSR-4, with the six-inch drawdown, for Phase I, as the phases have been identified in Paragraphs 128- 129 of the Findings of Fact. ENTERED this 14 day of July, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of July, 1992.
The Issue The ultimate issue to be addressed in this proceeding is whether the Applicants should be granted a dredge and fill permit. Petitioner contends that the Applicants have failed to provide reasonable assurances that the short-term and long-term effects of their proposed activities will not result in violations of the Department's water quality standards for both surface water and groundwater. The Applicants and the Department contend that reasonable assurances have been provided.
Findings Of Fact The Applicants are the owners of a 1,248-acre parcel of land located at the intersection of State Road 710 and State Road 711 in northern Palm Beach County, Florida. The Applicants are proposing to develop an industrial park known as "Palm Beach Park of Commerce" (PBPC). PBPC will provide sites for tenants to carry on various commercial and industrial activities. In order to prepare the site for development, the Applicants have designed a surface water management system. In order to develop the system, the Applicants must conduct dredging and filling activities in areas where the Department of Environmental Regulation has permitting jurisdiction. The Petitioner is an association of home owners within a single family residential development known as "Caloosa." The development is located to the southeast of the proposed PBPC. Surface and ground water flows from the PBPC site are toward Caloosa. Residents of Caloosa and members of the Petitioner are entirely dependent on private individual wells for their drinking water. The surficial aquifer is the only viable source of drinking water. The proposed PBPC surface water management system would allow water to drain from the site into an excavated canal which would essentially follow the perimeter of the site. The canal would discharge at the southeast corner of the site into the Caloosa Canal, which runs through the Caloosa residential development. The Caloosa Canal is designated as a Class III water body. The Caloosa Canal drains into the "C-18 Canal," which is maintained by the South Florida Water Management District. The point at which the Caloosa Canal discharges into the C-18 Canal is approximately 2.4 miles from the PBPC site. The C-18 Canal is designated as a Class I water body. The C-18 Canal ultimately discharges into the Loxahatchee River Basin, a Class II water body, which is located approximately 12.9 miles from the PBPC site. It is possible that during some periods of the year, water from the PBPC site would ultimately find its way to the Jonathan Dickinson park, where water has been designated as "outstanding Florida waters." It is approximately 13.2 miles from the PBPC site to the Jonathan Dickinson Park. The PBPC site is a high, marginal, stressed Everglades system. It is a prairie or pine flatwood area. During periods of heavy rainfall, water covers most of the site. During dry periods, there is standing water only in depressions. Approximately 200 acres of the site are inundated with water during a sufficient portion of the year to support predominantly wetland vegetation. Approximately 24 acres of the wetlands on the site are directly connected to drainage ditches that presently rim the site. The ditches are connected to the Caloosa Canal so that these 24 acres are ultimately connected through canal systems to the Loxahatchee River. These wetland areas, which will be hereafter referenced as "jurisdictional wetlands," are the only wetland areas other than the existing drainage ditches over which the Department of Environmental Regulation asserts jurisdiction under its Rule 17-4.28, Florida Administrative Code. As a part of its surface water management system, the Applicants propose to maintain 133.7 acres of the wetlands on the site in their natural condition. These wetland areas would be incorporated into the surface water management system so that surface water would flow into the wetlands, then through culverts or drainage ditches into the perimeter canal. The remaining wetlands on the site, including all of the "jurisdictional wetlands," would be filled. The wetlands on the PBPC site perform a significant water quality function. The wetlands serve as a filtration system. Wetland vegetation removes nutrients and turbidity from surface water before it is discharged into the canals and ultimately into the Loxahatchee River. The wetlands that the Applicants propose to preserve on the site would continue to perform that beneficial function. In order to mitigate the loss of the wetlands that would be filled, the Applicants propose to create approximately 85 acres of new wetland areas and to vegetate these areas. These artificially created wetlands, if properly constructed, vegetated and maintained, would perform the same beneficial functions as the natural wetland communities. The Applicants have proposed to introduce several safeguards into their water management system to assure that the quality of surface and ground water in the area will not be adversely impacted. The preservation of 133 acres of natural wetland areas and the creation of approximately 85 acres of artificial wetland areas is one of these safeguards. In addition, the surface water management system includes the creation of swales around water bodies so that the first one inch of stormwater runoff on the site will not drain directly into surface water bodies. By retaining the first one inch of runoff, pollutants contained in stormwater runoff will be retained on the site and will not enter surface or ground waters. Each commercial or industrial site at PBPC will be required to retain an additional one inch of stormwater runoff on the individual site. This will serve to filter pollutants out of stormwater runoff even before the runoff reaches the overall surface water management system in which one inch of runoff will also be retained on site. The Applicants have also agreed to establish a surface water quality management program to prohibit the discharge of any industrial waste into the surface water management system and to have the surface water management system maintained by the Northern Palm Beach Water Control District. There are further safeguards proposed by the Applicants. The Applicants have agreed to prohibit the most potentially hazardous industrial activities from being undertaken on the site. Applicants have also agreed to require each individual site plan to be reviewed by local government, the South Florida Water Management District, and the Department of Environmental Regulation so that potential water quality problems connected with site-specific uses can be identified and, if necessary, prohibited. The Applicants have agreed to establish an environmental liaison officer whose function will be to monitor all development on the site and report routinely to local government, the South Florida Water Management District, and the Department of Environmental Regulation regarding environmental issues. In order that any potential groundwater pollution can be detected and, if necessary, steps taken to remove pollutants from the groundwater, the Applicants have agreed to establish well- monitoring systems for the project as a whole and for individual sites. Individual site plans have not yet been formulated. It is not practical or possible to design water monitoring programs for the individual sites at this time. Once the nature of activities at a site are known, monitoring programs can be effectively set up and maintained. In the event that surface or ground water contamination occurs, it can be detected through monitoring programs, and the contaminants can be removed. The Applicants have provided reasonable assurance that the short-term and long-term effects of the construction of the PBPC water management system will not result in violations of the Department's water quality standards for surface or ground water. By use of turbidity screens during construction, short-term impacts will be negligible. Absent any construction on the site beyond the creation of the surface water management system, it is likely that the quality of water leaving the PBPC site will be as good or better than at present. Since the Applicants have not yet located tenants or made individual site plans for commercial and industrial activities within PBPC, it is not possible to determine if some specific activity in the future could operate to cause violations of the Department's water quality standards. In order that there be such assurances, the Applicants have agreed to subject individual site plans to review by local government, the South Florida Water Management District, and the Department of Environmental Regulation. In the event that a future tenant is not able to provide required assurances, the use can and should be prohibited, and can be prohibited by regulatory agencies as a condition of permits issued to the Applicants. Water quality violations presently occur in the Caloosa Canal and the C-18 Canal. The safeguards proposed by Applicants reasonably assure that the implementation of the proposed water management system will not exacerbate or cotribute to these violations. There is approximately an 11-square-mile area which drains into the Caloosa Canal through the outfall at the southeast corner of the PBPC site. The PBPC site constitutes approximately two square miles of this area. The remaining nine square miles are located to the north and west of the PBPC site. These off-site areas are undeveloped and have an ecology very similar to the presently undeveloped PBPC site. The evidence would not establish a finding that development of these off-site parcels together with development of the PBPC site would cumulatively result in water quality violations of surface or ground waters. The Applicants will be required to obtain permits to construct a wastewater treatment facility on the PBPC site. Whether any proposed wastewater treatment system will meet the standards of regulatory agencies would appropriately be considered in later proceedings. Similarly, individual tenants will, in some cases, be required to operate wastewater treatment systems that pretreat industrial waste before it is introduced into the system-wide wastewater treatment system or before it is otherwise removed from the site. These systems would also be subject to future permitting proceedings. Some of the potential activities that could be carried on by tenants at the PBPC involve the use of volatile organic compounds and other hazardous toxic substances. If proper techniques are not followed for the handling of such substances, or if some accident occurs, the substances could be introduced into the surface and ground waters. Review of each individual site plan and the establishing of systems for properly handling toxic substances can reduce the possibility of incidents occurring. Human frailties existing as they do, however, it is not unlikely that such an incident will occur. If such an incident occurs, it is vitally important that the contamination of surface or ground water be quickly detected and that steps be taken to remove the contaminant. The establishing of proper monitoring systems can reasonably assure that the contamination is identified. Techniques do exist for removing contaminants from surface and ground waters. Since individual tenants and site plans have not yet been established, it is not possible to make any finding as to whether any individual tenant or site plan might operate in such a manner as to cause violations of the Department's water quality standards. It is therefore appropriate that individual tenants and site plans be subjected to further review by appropriate regulatory agencies before they are permitted to operate on the PBPC site. The Applicants have agreed to such a review process. Since surface water flows into the Caloosa Canal can be controlled through the outfall structure at the southeast corner of the PBPC site, it appears practical to isolate any contaminant that might enter the surface water and to remove it. Groundwater flows in the aquifer lying below the PBPC site are very slow--less than one-tenth of one foot per day. Given such flow rates, it is likely that any contaminants that enter the groundwater can be detected and effectively removed. Even given the implementation of the best procedures for handling toxic substances, the best monitoring program for detecting accidental releases of the substances, and the best systems for removing the substances from surface and ground waters, there is some possibility that an accident could occur, that a contaminant would not be detected, and that violations of the Department's water quality standards could occur as a result in the Caloosa Canal or in the groundwater which underlies the Caloosa development and provides drinking water to residents there. The result of such an incident could have very serious impacts. The introduction of toxic substances into the surface waters could cause a substantial damage as far downstream as the Loxahatchee River Basin. Contamination of the groundwater could result in a loss of water supply to residents or in serious public health consequences. While such possibilities exist, they appear unlikely given the safeguards that have been proposed for PBPC. The Applicants do not propose to undertake any dredging or filling activities in any navigable waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order issuing a permit to Caleffe Investment, Ltd., Worthington Enterprises, Inc., to conduct the dredging and filling activities proposed by the Applicants. To ensure that state water quality standards will not be violated, the conditions cited in the Department's Intent to Issue notice dated October 22, 1982, should be made a part of the permit. In addition, the following conditions should be made a part of the permit: All individual site plans within PBPC should be subject to the Department's permitting processes in accordance with Rule 17-4.28, Florida Administrative Code, and other provisions of Chapter 17, Florida Administrative Code, and Chapter 403, Florida Statutes, as may apply. The Applicants should be required to post bond in a sufficient amount to assure proper implementation and operation of monitoring systems for individual sites and to assure that adequate funds are available to remove and properly treat contaminants that might enter surface or ground waters as a result of accidents. RECOMMENDED this 19th day of May, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1983. COPIES FURNISHED: Randall E. Denker, Esquire Lehrman & Denker Post Office Box 1736 Tallahassee, Florida 32302 Dennis R. Erdley, Esquire Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert M. Rhodes, Esquire Terry E. Lewis, Esquire James Hauser, Esquire Messer, Rhodes & Vickers Post Office Box 1876 Tallahassee, Florida 32302 Alan J. Ciklin, Esquire Boose & Ciklin 8th Floor - The Concourse 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Tracy Sharpe, Esquire Farish, Farish & Romani 316 First Street West Palm Beach, Florida 33402 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Liz Cloud, Chief Administrative Code Bureau Department of State The Capitol, Suite 1802 Tallahassee, Florida 32301 Carroll Webb, Esquire Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Findings Of Fact Co-Respondent, Howard Thompson, applied to the Department of Environmental Regulation (DER) for a dredge and fill permit and water quality certification authorizing him to place approximately ten cubic yards of fill dirt waterward of the mean high water elevation in a certain artificially dredged ditch. That ditch presently connects a formerly isolated wetland area, through a roadside ditch, to the Matanzas River. The project site lies on Anastasia Island, in a coastal dune zone, near the community of Butler Beach, in St. Johns County. The artificially constructed ditch was originally dredged to connect the isolated wetland area with waters of the State (Matanzas River) for the purpose of drainage of the wetland area in the interest of mosquito control. The ditch is bordered by parallel streets on each side. Residential lots and houses lie between the streets and the ditch. Single family residences are built on both sides of the ditch upstream of the proposed fill site, with their back yards bordering the ditch. The Petitioner and Petitioner's witnesses own property on the ditch, upstream of the proposed fill site. Mr. Jeremy Tyler was accepted as an expert witness in the fields of biology and the water quality impacts of dredge and fill projects. It was thus established that the water quality standards at issue will not be violated by the project. Although there is presently some tidal exchange with the Matanzas River, this provides little or no ecological benefit due to the paucity of water flowing through the ditch in either direction under normal weather conditions. The wetland area which presently is connected to the Matanzas River through the ditch system has a low value in terms of functions it performs in enhancing recreational value, marine productivity, conservation of fish or wildlife and their habitats, for purposes of the criteria set forth in Section 403.918(2)(a) 1-7. This is because of its very small size and because of its isolation from other waters of the State, being connected only by the small drainage ditch characterized by very low flows of water during normal periods of rainfall and because of the low level of tidal exchange between the wetland and the adjacent waters of the State. Mr. Tyler established that should the proposed plug be placed in the ditch, that the relative value of the functions performed by the wetland area will not be measurably altered in terms of either improvement of those functions or their degradation. The ditch itself has a very low value in terms of marine productivity, conservation of fish and wildlife or their habitats and the other criteria in the section cited above because it is simply an artificial ditch cut through a pre- existing upland and is not characterized by a significant growth of beneficial marine or aquatic plant species, nor by diversity of other marine or aquatic life forms which could possibly be degraded as to their diversity or as to the quality of their habitats by installation of the fill at the proposed location. Thus, the water quality criteria of Chapter 17-3 and 17-12, Florida Administrative Code, will not be violated by the installation of the fill and completion of the project, nor will the above considerations related to the public interest, enunciated in the Section cited above, be adversely affected by the project. The Petitioner and the Petitioner's witnesses are presently experiencing some flooding caused in part by fill placed in the ditch at another point by another property owner without the authorization of a permit. These persons have experienced flooding which has caused the death of flowers and shrub plants and trees in their yards because of elevated water levels resulting from the fill already placed in the ditch. The Petitioner established that if the ditch is plugged by the subject project, the flooding condition will be exacerbated and will further damage his and his witnesses' property. There is a substantial likelihood of increased mosquito infestations caused by the plugging of the ditch as the Petitioner and his neighbors are presently experiencing a relatively severe problem with mosquito infestation which prevents them from using their property for various outdoor pursuits more frequently than in the past before any fill was placed in the ditch. The Department's witness, Mr. Tyler, acknowledged that ponding of water and flooding will likely result if the plug is placed in the ditch. The flooding will impinge on the property of the Petitioners to a greater extent than is presently the case because of the different location of the plug from the present, unauthorized fill already been placed in the ditch. The Petitioner did not produce an expert witness in the fields of hydrology, horticulture, nor in public health (with regard to the mosquito infestation complaints). Petitioner established however, given the testimony concerning the lack of flooding and lessened mosquito infestation before the present fill was placed in the ditch, and the likely result of increased flooding because of the location of the proposed fill, so as a sufficient basis by lay opinion testimony that increased flooding will occur and that the flooding has been and will be the direct cause of the death of shrubbery, trees and flowers in the yards of homeowners upstream from the fill site. The presently severe mosquito infestation will likely be exacerbated. It has thus been established that increased flooding will occur if the fill is placed in the ditch downstream of property owned by the Petitioner and Petitioner's witnesses. There is also a substantial likelihood that an increased mosquito infestation will result in the area of their residences because of the lack of drainage of the flooded area which can only be alleviated by percolation and evaporation at very slow rates if the present drainage ditch is filled further by completion of the subject project.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent Department of Environmental Regulation deny the dredge and fill permit application no. 551136302 of Howard Thompson. DONE and ENTERED this 4th day of February, 1987 in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of February, 1987.
The Issue The issues in this case are set out in the Petition to Determine Invalidity of Agency Rules and Agency Statement filed by A. Duda and Sons, Inc. (Duda): Count I, whether the St. Johns River Water Management District (SJRWMD) has an invalid and unadopted strategy to use various means to negate the agricultural exemption set out in Section 373.406(2), Florida Statutes; Count II, whether Section 3.4.1(b) of SJRWMD's Applicant's Handbook: Management and Storage of Surface Waters (the Handbook), which is incorporated by reference in Florida Administrative Code Rule 40C-4.091, is invalid essentially because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague; Count III, whether Rule 40C-4.041 is invalid essentially because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague; Count IV, whether certain documents--namely, all or part of The Manual of Reference Management Practices for Agricultural Activity (November 1978) (the Manual), excerpts from the Journals of the Florida House of Representatives and Senate (1984), and parts of the Model Water Code Commentary (Univ. of Florida 1972)(the Code Commentary), all of which are referred to in Section 3.4.1 of the Handbook but not filed with the Secretary of State--are invalid because they were not properly incorporated by reference under Rule 1S-1.005(2), because they conflict with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and because they are vague; and Count V, whether Rule 40C-44.041 is invalid because it conflicts with the agricultural exemption set out in Section 373.406(2), Florida Statutes, and is vague.
Findings Of Fact Duda clearly has standing since it is challenging the validity of SJRWMD rules and alleged rules that pertain to an enforcement action SJRWMD is bringing against Duda. As reflected in the Statement of the Issues, Section 373.406(2), Florida Statutes, is at the heart of most of the issues in this case. It states: Nothing herein, or in any rule, regulation, or order adopted pursuant hereto, shall be construed to affect the right of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or predominant purpose of impounding or obstructing surface waters. Section 3.4.1(b) of SJRWMD's Handbook states, in pertinent part, how SJRWMD interprets the exemption set out in Section 373.406(2), Florida Statutes: In determining whether an exemption is available to a person engaged in the occupation of agriculture, silviculture, floriculture or horticulture, the following questions much be addressed: Is the proposed topographic alteration consistent with the practice of agriculture, silviculture, floriculture, or horticulture? Is the proposed topographic alteration for the sole or predominant purpose of impounding or obstructing surface waters? If the first question is answered affirmatively and the second is answered negatively, an exemption under subsection 373.406(2), F.S., is available. The exemption is construed as set forth in the Conference Committee Report on CS/CS/HB 1187, Journal of the House of Representatives, May 29, 1984, page 734 and Journal of the Senate, May 28, 1984, page 475. The District presumes that the following activities are consistent with the practice of silviculture when they are undertaken to place property into silvicultural use or to perpetuate the maintenance of property in silvicultural use. The following activities are also presumed not to be for the sole or predominant purpose of impounding or obstructing surface waters: normal site preparation for planting of the tree crop; planting; and harvesting. If any activity is undertaken to place the property into a use other than silviculture (for example: harvesting which is designed to clear property in preparation for commercial, industrial or residential development rather than regeneration) the activity is not considered to be consistent with the practice of silviculture and will be subject to the permitting jurisdiction of the District. Examples of activities which are considered to be for the sole or predominant purpose of impounding or obstructing surface waters because they have the effect of more than incidentally trapping, obstructing or diverting surface water are activities which create canals, ditches, culverts, impoundments or fill roads. In determining consistency with the practice of agriculture occupations, the District will refer to the following publication: "A Manual of Reference Management Practices for Agricultural Activities (November, 1978)[.]" The following practices described in the manual are considered as having impoundment or obstruction of surface waters as a primary purpose: Diversion, when such practice would cause diverted water to flow directly onto the property of another landowner Floodwater Retarding Structure Irrigation Pit or Regulating Reservoir Pond Structure for Water Control Regulating Water in Drainage Systems Pumping Plant for Water Control, when used for controlling water levels on land Other practices which are described in the manual and which are constructed and operated in compliance with Soil Conservation Service standards and approved by the local Soil and Water Conservation District are presumed to be consistent with agricultural activities. Practices which are not described in the manual are presumed to be inconsistent with the practice of agriculture and a permit is required for the construction, alteration, operation, maintenance, removal, or abandonment of a system, subject to the thresholds. See Appendix H for a complete listing of agricultural practices described in the manual. A copy of the manual may be obtained by contacting the District headquarters. Appendix H to the Handbook sets out brief descriptions of listed soil conservation practices for agriculture and states that those practices are described in detail in the Soil Conservation Service's Field Office Technical Guides; it also sets out several other recognized Best Management Practices (BMPs) for agriculture. Appendix H of the Handbook is a verbatim reproduction of the part of the Manual from which it is taken. While Section 3.4.1(b) of the Handbook advises that a copy of the entire Manual may be obtained from SJRWMD, it only incorporates the parts set out verbatim in it and Appendix H. The conference committee reports referred to in Section 3.4.1(b) of the Handbook recommended enactment of the Warren S. Henderson Wetlands Protection Act of 1984 (the Henderson Act), were voted on, and were approved by the House of Representatives and the Senate. Both reports stated in pertinent part: The language contained in s. 403.913, relating to agricultural activities, shall be construed in conjunction with s. 373.406(2) to exempt from permitting only those activities defined as "agricultural activities" pursuant to this act in accordance with the Commentary to s. 4.02.(2) of the Model Water Code. Section 403.913[now 403.927](4)(a), Florida Statutes, stated: "Agricultural activities" includes all necessary farming and forestry operations which are normal and customary for the area, such as site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, harvesting, construction of access roads, and placement of bridges and culverts, provided such operations do not impede or divert the flow of surface waters. The Commentary to Section 4.02.(2) states in pertinent part: The intent of this subsection is to allow persons engaged in agricultural, floricultural, and horticultural operations to engage in ordinary farming and gardening without obtaining a construction permit under §4.04. Theoretically, such operations may incidentally trap or divert some surface water. For example, by plowing a pasture a farmer is trapping and diverting surface water that would have constituted part of the runoff and eventually would have become part of the surface water of the state. Without this exemption the farmer would have theoretically been required to obtain a permit under §4.04. In addition, it would appear that all changes of topography which would alter natural runoff, such as contour plowing, would also require a construction permit under §4.04. The quantity of the water being diverted and trapped is so small that it would serve no practical purpose to require a permit for such work. In addition, the administrative burden of regulating such operations would be enormous. Rule 40C-4.041 provides in pertinent part: Unless expressly exempt, an individual or general environmental resource permit must be obtained from the District under Chapter 40C-4, 40C-40, 40C-42, 40C-44 or 40C-400, F.A.C., prior to the construction, alteration, operation, maintenance, abandonment or removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works, including dredging or filling, and for the maintenance and operation of existing agricultural surface water management systems or the construction of new agricultural surface water management systems. Rule 40C-44.041 provides in pertinent part: Unless expressly exempt by Section 373.406, F.S., or Rule 40C-4.051 or 40C- 44.051, F.A.C., a permit is required under this chapter for the maintenance and operation of existing agricultural surface water management systems which serve an agricultural operation as described in paragraph (a) or (b) below. Other than the argument that certain agency statements are unadopted statements defined as rules, Duda's primary argument is that Section 373.406(2), Florida Statutes, is unambiguous and that SJRWMD's interpretation of it, as reflected in its rules and statements, is contrary to the plain meaning of the unambiguous statutory language. Specifically, Duda focuses on SJRWMD's interpretation of the language "for purposes consistent with the practice of such occupation" and "not for the sole or predominant purpose of . . . obstructing surface waters." But it is concluded that SJRWMD's interpretation of the statutory language is as or more reasonable than Duda's. Section 3.4.1(b) of SJRWMD's Handbook describes seven activities that are not "consistent with the practice of [the listed occupations]," including just one that may be disputed by Duda--namely: "Diversion, when such practice would cause diverted water to flow directly onto the property of another landowner." Since Duda's activities that are subject to SJRWMD's enforcement actions do not "cause diverted water to flow directly onto the property of another landowner," Duda's challenge did not focus on that part of Section 3.4.1(b) of the Handbook but rather on diversions of water that do not "cause diverted water to flow directly onto the property of another landowner." But to the extent that Duda was attacking this part of SJRWMD's interpretation, the evidence presented by Duda did not prove that diversion of water to flow directly on the property of another landowner is consistent with the practice of the listed occupations. The Handbook also describes, through Appendix H, activities "presumed to be consistent with agricultural activities." Duda has no dispute with activities described in Appendix but disputes the Handbook's statement that all other activities are "presumed to be inconsistent with the practice of agriculture." But the presumption is rebuttable, and the impact of the statements in the Handbook is to simply require proof of entitlement to the agricultural exemption for activities not listed in Appendix H in proceedings under Sections 120.569 and 120.57, Florida Statutes. Duda also argues that, by its plain meaning, the word "purpose" as used in Section 373.406(2), Florida Statutes, means the actor's subjective intent, not the action's objective effect --in this case, namely, the more-than-incidental trapping or diversion of water to create canals, ditches, culverts, or fill roads. To the contrary, one of the several accepted meanings of the word "purpose" is: "1a : . . . an object or end to be attained : INTENTION b : RESOLUTION, DETERMINATION 2 : a subject under discussion or an action in course of execution." See Merriam Webster's Collegiate Dictionary 1011 (11th ed. 2005). That dictionary also identifies intention as a synonym of the first sense given for purpose and lists design and end among the additional synonyms in the synonymy paragraph after the entry for intention. See id. at 651. For a list of synonyms of the second main meaning of purpose listed in the dictionary ("an action in the course of execution"), one may turn to the second entry for purpose in the companion thesaurus likewise published by Merriam- Webster. That entry lists use in its fourth sense ("a particular service or end") and function as additional synonyms of purpose. See Merriam Webster's Collegiate Thesaurus 591 (1988). Likewise, the dictionary lists purpose as a synonym of function in its sense as "the action for which a person or thing is specially fitted or used or for which a thing exists." See Merriam Webster's Collegiate Dictionary 507 ("function implies a definite end or purpose that the one in question serves or a particular kind of work it is intended to perform"). Broadly, these potential meanings of purpose describe an action, operation, or effect (or a function, use, or result) of a thing done, which can be observed objectively. Duda also argues that, by its plain meaning, the word "obstructing surface waters" as used in Section 373.406(2), Florida Statutes, cannot mean just more-than-incidentally trapping or diverting surface waters to create canals, ditches, and culverts because those works speed or increase water flow rather than obstruct it. To the contrary, Merriam-Webster defines obstruct as "1 :to block or close up by an obstacle 2 :to hinder from passage, action, or operation : IMPEDE 3 :to cut off from sight." Treating impede as a synonym for hinder and obstruct and listing further synonyms at hinder. See Merriam Webster's Collegiate Dictionary 857. The synonymy paragraph at hinder states that the core meaning shared by obstruct and its synonyms is "to interfere with the activity or progress [of something]." Id. at 588 (emphasis added); accord, The American Heritage Dictionary 960 (defiing obstruct as "1. To block or fill a passage with obstacles or an obstacle. . . . 2. To impede, retard, or interfere with; hinder"). One of these possible meanings of obstruct describes interfering with or hindering something, including its passage, action, or operation. In interpreting the word "purpose" in Section 373.406(2), Florida Statutes, it is reasonable for SJRWMD to choose the alternative meaning of an action, operation, or effect (or a function, use, or result) of a thing done, which can be observed objectively. To choose the other alternative meaning of the word would place the regulator at the mercy of the subjective intent of the person regulated and could lead to absurd results. Also, in interpreting the word "obstructing" in Section 373.406(2), Florida Statutes, it is reasonable for SJRWMD to choose the alternative meaning of interfering with or hindering something, including its passage, action, or operation. First, if the word meant only blocking, obstructing would mean the same thing as impounding and would be redundant. Second, if SJRWMD chose "blocking" as the meaning the latter meaning of the word "obstructing," it would countenance draining wetlands to use the drained land for agricultural purposes. Such a result would be in direct conflict with the intent of Chapter 373 to manage and protect water resources. See Conclusion of Law 23, infra. The extrinsic evidence of legislative intent supports SJRWMD's interpretation of Section 373.406(2), Florida Statutes. For that reason, SJRWMD's interpretation of the statute--as reflected in the Handbook--does not conflict with, exceed, modify, or contravene the statute; does not exceed statutory authority; is not standard-less or vague (so as to give SJRWMD unbridled discretion); is not arbitrary or capricious; and is not unsupported by competent, substantial evidence. It also was not proven that SJRWMD has an invalid and unadopted strategy to use various means to negate the agricultural exemption set out in Section 373.406(2), Florida Statutes. To the contrary, the evidence proved that SJRWMD interprets the statute validly and in accordance with the extrinsic evidence of the legislative intent. Finally, in the nearly 25 years that SJRWMD has interpreted Section 373.406(2), Florida Statutes, essentially as reflected in the Handbook, the Joint Administrative Procedure Committee (JAPC) has never objected to SJRWMD's interpretation as being invalid.
The Issue The issues are whether to (a) issue an Environmental Resource Permit (ERP) to the Department of Transportation (DOT) and Martin County (County) authorizing construction and operation of a surface water management system to serve a project known as the Indian Street Bridge; (b) issue DOT a letter of modification of ERP No. 43-00785-S authorizing roadway and drainage modifications to the Kanner Highway/Indian Street intersection; and (c) issue DOT a letter of modification of ERP No. 43-01229-P authorizing roadway and drainage modifications to Indian Street between the intersections of Kanner Highway and Willoughby Boulevard.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Citizens for Smart Growth, Inc., is a Florida 501(c)(3) corporation with its principal place of business in Palm City, Florida. It was formed by Odias Smith in August 2001, who serves as its president. The original directors were Kathie Smith, Odias Smith, and Craig Smith, who is the Smiths' son. The composition of the Board has never changed. According to the original Articles of Incorporation, its objectives are "preserving and enhancing the present advantages of living in Martin County (Quality of Life) for the common good, through public education, and the encouragement of reasonable and considered decision making by full disclosure of impacts and alternatives for the most appropriate use of land, water and resources." The exact number of members fluctuates from time to time. There are no dues paid by any member. At his deposition, Mr. Smith stated that no membership list exists; however, Kathie Smith stated that she currently has a list of 125 names, consisting of persons who at one time or another have made a contribution, have attended a meeting, or asked to be "kept informed of what's going on or asked to be on a mailing list or a telephone list, so they could be advised when we have meetings." No meetings have been held since 2006. Therefore, the Petitions filed in these cases have never been discussed at any meetings of the members, although Ms. Smith indicated that telephone discussions periodically occur with various individuals. Kathie Smith believes that roughly 25 percent of the members reside in a mobile home park north of the project site on Kanner Highway on the eastern side of the St. Lucie River, she does not know how many members reside on the western side of the St. Lucie River, and she is unaware of any member who resides on the South Fork of the St. Lucie River immediately adjacent to the project. Although the three Petitions allege that "seventy percent of the members . . . reside and/or recreate on the St. Lucie River," and in greater detail they allege how those members use that water body or depend on it for their livelihood, no evidence was submitted to support these allegations that 70 percent (or any other percentage of members) use or depend on the South Fork of the St. Lucie River for recreational or other activities. Petitioners Odias Smith and Cathie Smith reside in Palm City, an unincorporated community just south of Stuart in Martin County. They have opposed the construction of the new bridge since they moved to Palm City in 2001. It is fair to infer that Mr. Smith formed the corporation primarily for the purpose of opposing the bridge. Their home faces north, overlooking the South Fork of the St. Lucie River, from which it is separated by Saint Lucie Shores Drive and a narrow strip of common-ownership property. A boat dock extends from the common-ownership property into the St. Lucie River, providing 5 slips for use by the Smiths and other co-owners. The home is located three blocks or approximately 1,000 feet from the proposed western landfall of the new bridge. Due to the direction that the house faces (north) and the site of the new bridge, the surface water management system elements associated with the bridge will not be visible from their property. Mr. Smith believes, however, that when looking south through a veranda window on the second floor of his home, he will be able to see at least a part of the new bridge. From the front of their house, they now have an unobstructed view of the existing Palm City Bridge, a large structure that crosses the St. Lucie River approximately six- tenths of a mile north of their home, and which is similar in size to the new bridge now being proposed by the Applicants. The Smiths' home is more than 500 feet from the Project's right- of-way, and they do not know of any impact on its value caused by the Project. While the Smiths currently engage in walking, boating, running, fishing, and watching wildlife in the neighborhood or the South Fork of the St. Lucie River, there was no credible evidence that the Project would prevent them from doing so after the bridge and other improvements are constructed. Also, there was no evidence showing that the ERP Letter Modifications will cause them to suffer any adverse impacts. In fact, as noted below, by DOT undertaking the Project, the neighborhood will be improved through reduced flooding, improved water quality, and new swales and ponds. The County is a political subdivision of the State. It filed one of the applications at issue in this proceeding. DOT is an agency of the State and filed the three applications being contested. The District has the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Part IV, Chapter 373, Florida Statutes, and Title 40E of the Florida Administrative Code. The Department of Environment Protection (DEP) has delegated certain authority to the District, including the authority to authorize an applicant to use sovereign submerged lands via a public easement within the District's geographic jurisdiction. The Project Construction of a new bridge over the St. Lucie River has been studied extensively by the Applicants for over twenty years. DOT has awarded the contract and nearly all of the right-of-way has been purchased. The Project will begin as soon as the remaining permits are acquired. The Project is fully funded through the American Recovery and Reinvestment Act of 2009 and County funding. The Project is located in the County and includes 62.06 acres of roadway bridge development and 12.45 acres of sovereign submerged lands. The Project begins on the west side of the St. Lucie River on County Road 714, approximately 1,300 feet west of Mapp Road in Palm City and ends on the east side of the St. Lucie River approximately 1,400 feet east of Kanner Highway (State Road 76) on Indian Street. It includes construction and operation of a surface water management system to serve the road and bridge project. The total length of the Project is approximately 1.96 miles (1.38 miles of roadway and 0.58 miles of bridge) while the total area is approximately 74.51 acres. After treatment, surface water runoff will discharge to the tidal South Fork of the St. Lucie River. The Project encompasses a bridge crossing the South Fork of the St. Lucie River and the Okeechobee Waterway. Both are classified as Class III waters. The bridge transitions from 4 to 6 lanes east of the Okeechobee Waterway and will require a 55-foot vertical clearance and a 200-foot horizontal clearance between the fender systems at the Okeechobee Waterway. The bridge will cross over a portion of Kiplinger Island owned and preserved by the County. A part of the island was donated to the County in 1993-1994 by The Kiplinger Washington Editors, Inc., and the Kiplinger Foundation, Inc. Audubon of Martin County owns another part of the island. The transfer of title to the County does not include any restriction on the use of the island for conservation purposes only. Documentation submitted at hearing refers to a "two hundred foot wide road right-of-way" easement that the bridge will cross and allows the County to designate where on the island parcel such an easement would be. Therefore, spanning the bridge over a portion of the island owned by the County is clearly permissible. The Project also includes the roadway transition and widening/reconstruction of (a) County Road 714 from the beginning of the Project to Mapp Road from 2-lane to a 4-lane divided roadway; (b) Southwest 36th Street from Mapp Road to the beginning of the bridge from a 2-lane rural roadway to a 4-lane divided roadway with wide roadway swales; and (c) Kanner Highway (along Indian Street) from a 4-lane to a 6-lane divided urban roadway. Drainage improvements on both sides of the St. Lucie River are associated with the roadway construction. DOT proposes to provide both on-site and off-site mitigation for wetland and surface waters impacts pursuant to a mitigation plan approved by the District. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. Besides these rules, certain related BOR provisions which implement the rules must also be considered. The conditions for issuance primarily focus on water quality, water quantity, and environmental criteria and form the basis of the District's ERP permitting program. The parties have stipulated that the Project either complies with the following rule provisions or they are not applicable: Rules 40E-4.301(1)(a), (b), (g), (g), (h), and (k), and 40E- 4.302(1)(a)3. and 6. All other provisions remain at issue. Where conflicting evidence on these issues was submitted, the undersigned has resolved all evidentiary conflicts in favor of the Applicants and District. Based on the parties' Stipulation, the following provisions in Rule 40E-4.301(1) are in dispute and require an applicant to provide reasonable assurances that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: will not cause adverse impacts to existing surface water storage and conveyance capabilities; will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any anti-degradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; will not cause adverse secondary impacts to the water resources; will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; will be conducted by an entity with sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; These disputed criteria are discussed separately below. Surface Water Storage and Conveyance Rule 40E-4.301(1)(c) requires that an applicant provide reasonable assurances that a proposed activity will not cause adverse impacts to existing surface water storage and conveyance capabilities. Through unrefuted evidence, this requirement was shown to be satisfied. The evidence also establishes that the surface water in and around the Project will actually improve if the Project is constructed as permitted. Further, it will create improved and upgraded surface water management and treatment in areas that now lack features such as swales, retention/detention ponds, curbs and gutters, and improve the overall surface water storage and conveyance capabilities of the Project and surrounding areas. In its current pre-development condition, flooding has occurred in certain areas adjacent to and within the Project area due to poor conveyance, low storage volume, and high tailwater conditions that result from high tides. The Project will remedy historic flooding issues in the Old Palm City area which lies adjacent to a portion of the Project alignment. Surface water runoff will be captured, controlled, and treated by a system of swales, weirs, and retention/detention facilities for pretreatment prior to discharging into the South Fork of the St. Lucie River. Reasonable assurances have been given that existing surface water storage and conveyance capabilities will not be adversely affected. Value of Functions to Fish, Wildlife, and Species Rule 40E-4.301(1)(d) requires that an applicant provide reasonable assurances that a proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. BOR Section 4.2.2 further implements this provision. For the following reasons, the rule and BOR have been satisfied. The evidence shows that the existing functions to fish and wildlife were assessed and analyzed by a number of federal and state fish and wildlife agencies. There were extensive review and site inspections by the District, DOT, United States Fish and Wildlife Service, United States Army Corps of Engineers, and National Marine Fisheries Commission to assess the existence of, and potential impact on, fish and wildlife that may result from the Project. These studies revealed that while portions of the South Fork of the St. Lucie River provide potential habitat for aquatic or wetland-dependent or threatened species of special concern, no nesting or roosting areas within the vicinity of the Project were observed. The evidence further supports a finding that "other surface waters" over and under the Project will not receive unacceptable impacts due to their current condition, the detrimental influences of Lake Okeechobee discharges, and tidal impacts. Many of the wetlands to be impacted by the Project were shown to have been impacted by historic activities, and they provide diminished functions to fish and wildlife. The wetland functions were assessed through the Uniform Mitigation Assessment Methodology (UMAM). The UMAM is a standardized procedure for assessing the functions provided by wetlands and other surface waters, the amount that those functions would be reduced by a proposed project, and the amount of mitigation necessary to offset that loss. Detailed UMAM assessments were prepared by the Applicants and the District. They demonstrate that while certain functional units will be lost, they will be fully offset by the proposed mitigation. No credible evidence to the contrary was presented. Water Quality of Receiving Waters Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that a project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. BOR Section 4.2.4 implements this rule and requires that "reasonable assurances regarding water quality must be provided for both the short term and long term, addressing the proposed construction, . . . [and] operation of the system." The receiving water body is the South Fork of the St. Lucie River, which is designated as an impaired water body. The evidence establishes that the Applicants will avoid and minimize potential short-term impacts to water quality by using silt screens and turbidity barriers, and implementing other best management practices to contain turbidity during construction of the Project. They will also use a temporary trestle rather than barges in the shallow portions of the South Fork to avoid stirring up bottom sediments. Finally, a turbidity monitoring plan will be implemented during construction and dewatering activities for all in-water work. All of these construction techniques will minimize potential impacts during construction. The evidence further establishes that water quality standards will not be violated as a result of the Project. In fact, in some cases water quality will be enhanced due to the installation and maintenance of new or upgraded surface water management features in areas where they do not exist or have fallen into disrepair. Over the long term, the Project is expected to have a beneficial effect on water quality. By improving existing surface water management and adding new surface water treatment features, the Project will provide net improvement to water quality. Wetland Delineation and Impacts The Project includes unavoidable impacts to wetlands and other surface waters. A total of 18.53 acres of wetlands and other surface waters within the Project site will be impacted by the Project, including 3.83 acres of wetlands that will be directly impacted and 14.7 acres of wetlands and other surface waters that will be secondarily impacted. The delineated wetlands are depicted in the Staff Report as wetlands 2a, 19a, 19b, 22, 25-29, 30a, 30b, and 30c, with each having a detailed UMAM assessment of its values and condition. (Impacts to wetland 25 are not included in this Project because they were accounted for in a separate permit proceeding.) Using a conservative assessment and set of assumptions, the District determined that, with the exception of wetlands 19a, 19b, 22, and 27, all wetlands would be impacted by the Project. However, the wetlands that would be impacted suffer from varying historical adverse impacts that have compromised the functions and values they provide to fish, wildlife, and species. This is due to their proximity to urban development, vegetative connectivity, size, historic impacts, altered hydroperiod, and invasive plant species. Likewise, even though the wetlands to be impacted on Kiplinger Island provide certain resting and feeding functions for birds, the value of these functions is comparatively lower than other wetlands due to the presence of invasive species and lack of management. The preponderance of the evidence supports a finding that the Applicants provided reasonable assurances that the Project will not cause adverse impacts to fish, wildlife, or listed species. See Fla. Admin. Code R. 40E-4.301(1)(d). Secondary Impacts Rule 40E-4.301(1)(f) and BOR Sections 4.1.1(f) and 4.2.7. require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources, both from a wetlands and water quality standpoint. Secondary impacts are those that occur outside the footprint of the project, but which are very closely linked and causally related to the activity to be permitted. De minimis or remotely-related secondary impacts, however, are not considered unacceptable. See § 4.2.7.(a). There will be secondary impacts to 6.83 acres of freshwater wetlands and 7.87 acres of mangroves, or a total of 14.7 acres. To address these secondary impacts, the Applicants have established extensive secondary impact zones and buffers along the Project alignment, which were based in part on District experience with other road projects and another nearby proposed bridge project in an area where a State Preserve is located. While Petitioners' expert contended that a 250-foot buffer on both sides of the roadway's 200-foot right-of-way was insufficient to address secondary impacts to birds (who the expert opines may fly into the bridge or moving vehicles), the greater weight of evidence shows that bird mortality can be avoided and mitigated through various measures incorporated into the Project. Further, the bird mortality studies used by the expert involved significantly different projects and designs, and in some cases involved projects outside the United States with different species concerned. Engineering and Scientific Principles Rule 40E-301(1)(i) requires that an applicant give reasonable assurance that a project "be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Unrefuted evidence establishes that the proposed system will function and be maintained as proposed. Financial, Legal and Administrative Capability Rule 40E-4.301(1)(j) requires that an applicant give reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms of the permit. The evidence supports a finding that Applicants have complied with this requirement. Elimination and Reduction of Impacts Before establishing a mitigation plan, Rule 40E- 4.301(3) requires that an applicant implement practicable design modifications to eliminate and reduce wetland and other surface water impacts. In this case, there are unavoidable, temporary wetland impacts associated with the construction of the Project, as well as unavoidable wetland impacts for direct (project footprint), secondary, and cumulative impacts of the Project. The record shows that the Applicants have undertaken extensive efforts to eliminate and reduce wetland and other surface water impacts of the Project. For example, DOT examined and assessed several innovative construction techniques and bridge designs to eliminate and avoid wetland impacts. To eliminate and reduce temporary impacts occurring during construction, DOT has reduced the effect of scour on the pier foundation and reduced the depth of the footing to minimize the amount of excavation on the mangrove island. Also, during construction, the contractor is prohibited from using the 200- foot right-of-way on the mangrove island for staging or stockpiling of construction materials or equipment. The majority of the bridge width has been reduced to eliminate and avoid impacts. Also, the Project's alignment was adjusted to the north to avoid impacts to a tidal creek. Reasonable assurances have been given that all practicable design and project alternatives to the construction and placement of the Project were assessed with no practicable alternatives. Public Interest Test Besides complying with the requirements of Rule 40E- 4.301, an applicant must also address the seven factors in Rule 40E-4.302(1)(a)1.-7., which comprise the so-called "public interest" test. See also § 373.414(1)(a), Fla. Stat. In interpreting the seven factors, the District balances the potential positive and negative effects of a project to determine if it meets the public interest criteria. Because Petitioners agree that factors 3 and 6 of the rule are not at issue, only the remaining five factors will be considered. For the following reasons, the Project is positive when the criteria are weighed and balanced, and therefore the Project is not contrary to the public interest. Public Health, Safety, and Welfare The Applicants have provided reasonable assurance that the Project will not affect public health, safety, and welfare. Specifically, it will benefit the health, safety, and welfare of the citizens by improving traffic conditions and congestion, emergency and hurricane evacuation, and access to medical facilities. In terms of safety, navigation markers are included as part of the Project for safe boating by the public. See Fla. Admin. Code R. 40E-4.302(1)(a)1. Conservation of Fish and Wildlife The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The mitigation projects will offset any impacts to fish and wildlife, improve the abundance and diversity of fish and wildlife on Kiplinger Island, create mangrove habitat, and add to the marine productivity in the area by enhancing water quality. See Fla. Admin. Code R. 40E-302(1)(a)2. Fishing or Recreational Values The Project has features that allow for pedestrian and bicycle utilization and observation areas which should enhance recreational values. The Old Palm Bridge, approximately one mile north of the Project, has had no adverse impact on the fishing recreation along the South Fork of the St. Lucie River. Navigation will not be affected due to the height and design of the new bridge. Finally, the bridge is expected to be a destination for boating, kayaking, fishing, and bird watching. See Fla. Admin. Code R. 40E-4.302(1)(a)4. Whether the Activity is of a Permanent Nature The parties have stipulated that the Project is permanent in nature. No future activities or future phases of the project are contemplated. Temporary and permanent impacts are all being fully mitigated. See Fla. Admin. Code R. 40E- 4.302(1)(a)5. Values of Functions Being Performed in Affected Areas Due to historic impacts to the areas affected by the Project, the current condition is degraded and the relative value of functions is minimal. Although Kiplinger Island will have temporary impacts, that island is subject to exotic species and has no recreational use or access by boaters or members of the public. The Applicants propose mitigation which will improve and enhance these wetland functions and values in the areas. See Fla. Admin. Code R. 40E-4.302(1)(a)7. Summary The evidence supports a finding that the Project is positive as to whether it will affect the public health, safety, welfare, or property of others; that the Project is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the Project is positive as to conservation of fish, wildlife, recreational values, marine productivity, permanency, and current values and functions. When weighed and balanced, the Project is not contrary to the public interest. Cumulative Impacts Rule 40E-4.302(1)(b) requires that an applicant give reasonable assurance that a project will not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in BOR Sections 4.28 through 4.2.8.2. Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin. An analysis is geographically based upon the drainage basins described in BOR Figure 4.4.1. Petitioners' contention that Figure 4.4.1 is inaccurate or not representative of the basin in which the Project is located has been rejected. In this case, the North St. Lucie Basin was used. To assess and quantify any potential unacceptable cumulative impacts in the basin, and supplement the analyses performed by the Applicants, the District prepared a Basin Map that depicted all the existing and permitted wetland impacts as well as those wetlands under some form of public ownership and/or subject to conservation restrictions or easements. The District's analysis found that the wetlands to be mitigated were of poor quality and provided minimal wildlife and water quality functions. Cumulative impacts from the Project to wetlands within the basin resulted in approximately a four percent loss basin-wide. This is an acceptable adverse cumulative impact. Therefore, the Project will not result in unacceptable cumulative impacts. Mitigation Adverse impacts to wetlands caused by a proposed activity must be offset by mitigation measures. See § 4.3. These may include on-site mitigation, off-site mitigation, off- site regional mitigation, or the purchase of mitigation credits from mitigation banks. The proposed mitigation must offset direct, secondary, and cumulative impacts to the values and functions of the wetlands impacted by the proposed activity. The ability to provide on-site mitigation for a DOT linear transportation project such as a bridge is limited and in this case consists of the creation of mangrove and other wetlands between the realigned St. Lucie Shores Boulevard and the west shore of the St. Lucie River, north and south of the proposed bridge crossing. BOR Section 4.3.1.2 specifically recognizes this limitation and allows off-site mitigation for linear projects that cannot effectively implement on-site mitigation requirements due to right-of-way constraints. Off-site mitigation will offset the majority of the wetland impacts. Because no single on-site or off-site location within the basin was available to provide mitigation necessary to offset all of the Project's impacts, DOT proposed off-site mitigation at two established and functioning mitigation areas known as Dupuis State Reserve (Dupuis), which is managed by the County and for which DOT has available mitigation credits, and the County's Estuarine Mitigation Site, a/k/a Florida Oceanographic Society (FOS) located on Hutchinson Island. Dupuis is outside the North St. Lucie Basin and was selected to offset direct and secondary impacts to freshwater wetlands. That site meets the ERP criteria in using it for this project. The FOS is within the North St. Lucie Basin and was selected to offset direct and secondary impacts to estuarine wetlands. Like Dupuis, this site also meets the ERP criteria for the project. The preponderance of the evidence establishes that the on-site and off-site mitigation projects fully offset any and all project impacts, and in most instances before the impacts will actually occur. Sovereign Submerged Lands and Heightened Public Concern Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. For purposes of granting a public easement to the Applicants, the District determined that the Project is not contrary to the public interest and that all requirements of the rule were satisfied. This determination was not disputed. The only issue raised by Petitioners concerning the use of submerged lands is whether the application should have been treated as one of "heightened public concern." See Fla. Admin. Code R. 18-21.0051(5). If a project falls within the purview of that rule, the Board of Trustees of the Internal Improvement Trust Fund (Board), rather than the District, must review and approve the application to use submerged lands. Review by the Board is appropriate whenever a proposed activity is reasonably expected to result in a heightened public concern because of its potential effect on the environment, natural resources, or controversial nature or location. Id. In accordance with established protocol, the ERP application was sent by the District to DEP's review panel in Tallahassee (acting as the Board's staff) to determine whether the Project required review by the Board. The panel concluded that the Project did not rise to the level of heightened public concern. Evidence by Petitioners that "many people" attended meetings and workshops concerning the Project over the last 20 years or so is insufficient to trigger the rule. Significantly, except for general project objections lodged by Petitioners and Audubon of Martin County, which did not include an objection to an easement, no adjacent property owner or other member of the public voiced objections to the construction of a new bridge. Revised Staff Report On October 20, 2010, the District issued a Revised Staff Report that merely corrected administrative errors or information that had been previously submitted to the District. Contrary to Petitioners' assertion, it did not constitute a material change to the earlier agency action either individually or cumulatively. Therefore, it was properly considered in this proceeding. Letter Modifications The Letter Modifications were used as a mechanism to capture minor alterations made to previously issued permits for Kanner Highway and Indian Street. Neither Letter Modification is significant in terms of water quality, water quantity, or environmental impacts. Both were issued in accordance with District rules and should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application Nos. 091021-8, 100316-7, and 100316-6. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2010. COPIES FURNISHED: Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Jeffrey W. Appel, Esquire Ray Quinney and Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Florida 84111-1401 Bruce R. Conroy, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 John J. Fumero, Esquire Rose, Sundstrom & Bentley, P.A. 950 Peninsula Corporate Circle Suite 2020 Boca Raton, Florida 33487-1389 Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road Mail Stop 1410 West Palm Beach, Florida 33406-3007
The Issue The issue to be determined is whether Consumptive Use Permit No. 2-083-91926-3, and Environmental Resource Permit No. IND-083-130588-4 should be issued as proposed in the respective proposed agency actions issued by the St. Johns River Water Management District.
Findings Of Fact The Parties Sierra Club, Inc., is a national organization, the mission of which is to explore, enjoy, and advocate for the environment. A substantial number of Sierra Club’s 28,000 Florida members utilize the Silver River, Silver Springs, the Ocklawaha River, and the St. Johns River for water-based recreational activities, which uses include kayaking, swimming, fishing, boating, canoeing, nature photography, and bird watching. St. Johns Riverkeeper, Inc., is one of 280 members of the worldwide Waterkeepers Alliance. Its mission is to protect, restore, and promote healthy waters of the St. Johns River, its tributaries, springs, and wetlands -- including Silver Springs, the Silver River, and the Ocklawaha River -- through citizen- based advocacy. A substantial number of St. Johns Riverkeeper’s more than 1,000 members use and enjoy the St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities. Karen Ahlers is a native of Putnam County, Florida, and lives approximately 15 miles from the Applicant’s property on which the permitted uses will be conducted. Ms. Ahlers currently uses the Ocklawaha River for canoeing, kayaking, and swimming, and enjoys birding and nature photography on and around the Silver River. Over the years, Ms. Ahlers has advocated for the restoration and protection of the Ocklawaha River, as an individual and as a past-president of the Putnam County Environmental Council. Jeri Baldwin lives on a parcel of property in the northeast corner of Marion County, approximately one mile from the Applicant’s property on which the permitted uses will be conducted. Ms. Baldwin, who was raised in the area, and whose family and she used the resources extensively in earlier years, currently uses the Ocklawaha River for boating. Florida Defenders of the Environment (FDE) is a Florida corporation, the mission of which is to conserve and protect and restore Florida's natural resources and to conduct environmental education projects. A substantial number of FDE’s 186 members, of which 29 reside in Marion County, Florida, use and enjoy Silver Springs, the Silver River, and the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, fishing, wildlife observation, and other water-based recreational activities. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the East Tract and the North Tract on which the activities authorized by the permits are proposed. St. Johns River Water Management District (SJRWMD or District) is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The Consumptive Use Permit The CUP is a modification and consolidation of two existing CUP permits, CUP No. 2-083-3011-7 and CUP No. 2-083- 91926-2, which authorize the withdrawal of 1.46 mgd from wells located on the East Tract. Although the existing CUP permits authorize an allocation of 1.46 mgd, actual use has historically been far less, and rarely exceeded 0.3 mgd. The proposed CUP modification will convert the authorized use of water from irrigation of 1,010 acres of sod grass on the East Tract, to supplemental irrigation of improved pasture for grass and other forage crops (approximately 97 percent of the proposed withdrawals) and cattle watering (approximately three percent of the proposed withdrawals) on the North Tract and the East Tract. An additional very small amount will be used in conjunction with the application of agricultural chemicals. CUP No. 2-083-3011-7 is due to expire in 2021. CUP No. 2-083-91926-2 is due to expire in 2024. In addition to the consolidation of the withdrawals into a single permit, the proposed agency action would extend the term of the consolidated permit to 20 years from issuance, with the submission of a compliance report due 10 years from issuance. Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production, based on the expected demand in a 2-in-10 drought year. That calculation is consistent with that established in CUP Applicant’s Handbook (CUP A.H.) section 12.5.1. The calculated amount exceeds the authorized average allocation of 1.46 mgd. Mr. Jenkins testified as to the District’s understanding that the requested amount would be sufficient, since the proposed use was a “scaleable-type project,” with adjustments to cattle numbers made as necessary to meet the availability of feed. Regardless of demand, the proposed permit establishes the enforceable withdrawal limits applicable to the property. With regard to the East Tract, the proposed agency action reduces the existing 1.46 mgd allocation for that tract to a maximum allocation of 0.464 mgd, and authorizes the irrigation of 611 acres of pasture grass using existing extraction wells and six existing pivots. With regard to the North Tract, the proposed agency action authorizes the irrigation of 1,620 acres of pasture and forage grain crops using 15 center pivot systems. Extraction wells to serve the North Tract pivots will be constructed on the North Tract. The proposed North Tract withdrawal wells are further from Silver Springs than the current withdrawal locations. The proposed CUP allows Sleepy Creek to apply the allocated water as it believes to be appropriate to the management of the cattle operation. Although the East Tract is limited to a maximum of 0.464 mgd, there is no limitation on the North Tract. Thus, Sleepy Creek could choose to apply all of the 1.46 mgd on the North Tract. For that reason, the analysis of impacts from the irrigation of the North Tract has generally been based on the full 1.46 mgd allocation being drawn from and applied to the North Tract. The Environmental Resource Permit As initially proposed, the CUP had no elements that would require issuance of an ERP. However, in order to control the potential for increased runoff and nutrient loading resulting from the irrigation of the pastures, Sleepy Creek proposes to construct a stormwater management system to capture runoff from the irrigated pastures, consisting of a series of vegetated upland buffers, retention berms and redistribution swales between the pastures and downgradient wetland features. Because the retention berm and swale system triggered the permitting thresholds in rule 62-330.020(2)(d) (“a total project area of more than one acre”) and rule 62-330.020(2)(e) (“a capability of impounding more than 40 acre-feet of water”), Sleepy Creek was required to obtain an Environmental Resource Permit for its construction. Regional Geologic Features To the west of the North Tract is a geologic feature known as the Ocala Uplift or Ocala Platform, in which the limestone that comprises the Floridan aquifer system exists at or very near the land surface. Karst features, including subterranean conduits and voids that can manifest at the land surface as sinkholes, are common in the Ocala Uplift due in large part to the lack of consolidated or confining material overlaying the limestone. Water falling on the surface of such areas tends to infiltrate rapidly through the soil into the Floridan aquifer, occasionally through direct connections such as sinkholes. The lack of confinement in the Ocala Uplift results in few if any surface-water features such as wetlands, creeks, and streams. As one moves east from the Ocala Uplift, a geologic feature known as the Cody Escarpment becomes more prominent. In the Cody Escarpment, the limestone becomes increasingly overlain by sands, shell, silt, clays, and other less permeable sediments of the Hawthorn Group. The North Tract and the East Tract lie to the east of the point at which the Cody Escarpment becomes apparent. As a result, water tends to flow overland to wetlands and other surface water features. The Property The North and East Tracts are located in northern Marion County near the community of Fort McCoy. East Tract Topography and Historic Use The East Tract is located in the Daisy Creek Basin, and includes the headwaters of a small creek that drains directly to the Ocklawaha River. The historic use of the East Tract has been as a cleared 1,010-acre sod farm. The production of sod included irrigation, fertilization, and pest control. Little change in the topography, use, and appearance of the property will be apparent as a result of the permits at issue, but for the addition of grazing cattle. The current CUPs that are subject to modification in this proceeding authorize groundwater withdrawals for irrigation of the East Tract at the rate of 1.46 mgd. Since the proposed agency action has the result of reducing the maximum withdrawal from wells on the East Tract to 0.464 mgd, thus proportionately reducing the proposed impacts, there was little evidence offered to counter Sleepy Creek’s prima facie case that reasonable assurance was provided that the proposed East Tract groundwater withdrawal allocation will meet applicable CUP standards. There are no stormwater management structures to be constructed on the East Tract. Therefore, the ERP permit discussed herein is not applicable to the East Tract. North Tract Topography and Historic Use The North Tract has a generally flat topography, with elevations ranging from 45 feet to 75 feet above sea level. The land elevation is highest at the center of the North Tract, with the land sloping towards the Ocklawaha River to the east, and to several large wet prairie systems to the west. Surface water features on the North Tract include isolated, prairie, and slough-type wetlands on approximately 28 percent of the North Tract, and a network of creeks, streams, and ditches, including the headwaters of Mill Creek, a contributing tributary of the Ocklawaha River. A seasonal high groundwater elevation on the North Tract is estimated at 6 to 14 inches below ground surface. The existence of defined creeks and surface water features supports a finding that the North Tract is underlain by a relatively impermeable confining layer that impedes the flow of water from the surface and the shallow surficial aquifer to the upper Floridan and lower Floridan aquifers. If there was no confining unit, water going onto the surface of the property, either in the form of rain or irrigation water, would percolate unimpeded to the lower aquifers. Areas in the Ocala Uplift to the west of the North Tract, where the confining layer is thinner and discontiguous, contain few streams or runoff features. Historically, the North Tract was used for timber production, with limited pasture and crop lands. At the time the 7,207-acre North Tract was purchased by Sleepy Creek, land use consisted of 4,061 acres of planted pine, 1,998 acres of wetlands, 750 acres of improved pasture, 286 acres of crops, 78 acres of non-forested uplands, 20 acres of native forest, 10 acres of open water, and 4 acres of roads and facilities. Prior to the submission of the CUP and ERP applications, much of the planted pine was harvested, and the land converted to improved pasture. Areas converted to improved pasture include those proposed for irrigation, which have been developed in the circular configuration necessary for future use with center irrigation pivots. As a result of the harvesting of planted pine, and the conversion of about 345 acres of cropland and non-forested uplands to pasture and incidental uses, total acreage in pasture on the North Tract increased from 750 acres to 3,938 acres. Other improvements were constructed on the North Tract, including the cattle processing facility. Aerial photographs suggest that the conversion of the North Tract to improved pasture and infrastructure to support a cattle ranch is substantially complete. The act of converting the North Tract from a property dominated by planted pine to one dominated by improved pasture, and the change in use of the East Tract from sod farm to pasture, were agricultural activities that did not require a permit from the District. As such, there is no impropriety in considering the actual, legal use of the property in its current configuration as the existing use for which baseline conditions are to be measured. Petitioners argue that the baseline conditions should be measured against the use of the property as planted pine plantation, and that Sleepy Creek should not be allowed to “cattle-up” before submitting its permit applications, thereby allowing the baseline to be established as a higher impact use. However, the applicable rules and statutes provide no retrospective time-period for establishing the nature of a parcel of property other than that lawfully existing when the application is made. See West Coast Reg’l Water Supply Auth. v. SW Fla. Water Mgmt. Dist., Case No. 95-1520 et seq., ¶ 301 (Fla. DOAH May 29, 1997; SFWMD ) (“The baseline against which projected impacts conditions [sic] are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications.”). The evidence and testimony in this case focused on the effects of the water allocation on the Floridan aquifer, Silver Springs, and the Silver River, and on the effects of the irrigation on water and nutrient transport from the properties. It was not directed at establishing a violation of chapter 373, the rules of the SJRWMD, or the CUP Applicant’s Handbook with regard to the use and management of the agriculturally-exempt unirrigated pastures, nor did it do so. Soil Types Soils are subject to classifications developed by the Soil Conservation Service based on their hydrologic characteristics, and are grouped into Group A, Group B, Group C, or Group D. Factors applied to determine the appropriate hydrologic soil group on a site-specific basis include depth to seasonal high saturation, the permeability rate of the most restrictive layer within a certain depth, and the depth to any impermeable layers. Group A includes the most well-drained soils, and Group D includes the most poorly-drained soils. Group D soils are those with seasonal high saturation within 24 inches of the soil surface and a higher runoff potential. The primary information used to determine the hydrologic soil groups on the North Tract was the depth to seasonal-high saturation, defined as the highest expected annual elevation of saturation in the soil. Depth to seasonal-high saturation was measured through a series of seven hand-dug and augered soil borings completed at various locations proposed for irrigation across the North Tract. In determining depth to seasonal-high saturation, the extracted soils were examined based on depth, color, texture, and other relevant characteristics. In six of the seven locations at which soil borings were conducted, a restrictive layer was identified within 36 inches of the soil surface. At one location at the northeastern corner of the North Tract, the auger hole ended at a depth of 48 inches -- the length of the auger -- at which depth there was an observable increase in clay content but not a full restrictive layer. However, while the soil assessment was ongoing, a back-hoe was in operation approximately one hundred yards north of the boring location. Observations of that excavation revealed a heavy clay layer at a depth of approximately 5 feet. In each of the locations, the depth to seasonal-high saturation was within 14 inches of the soil surface. Based on the consistent observation of seasonal-high saturation at each of the sampled locations, as well as the flat topography of the property with surface water features, the soils throughout the property, with the exception of a small area in the vicinity of Pivot 6, were determined to be in hydrologic soil Group D. Hydrogeologic Features There are generally five hydrogeologic units underlying the North Tract, those units being the surficial aquifer system, the intermediate confining unit, the upper Floridan aquifer, the middle confining unit, and the lower Floridan aquifer. In areas in which a confining layer is present, water falling on the surface of the land flows over the surface of the land or across the top of the confining layer. A surficial aquifer, with a relatively high perched water table, is created by the confinement and separation of surface waters from the upper strata of the Floridan aquifer. Surface waters are also collected in or conveyed by various surface water features, including perched wetlands, creeks, and streams. The preponderance of the evidence adduced at the final hearing demonstrates that the surficial aquifer exists on the property to a depth of up to 20 feet below the land surface (bls). Beneath the surficial aquifer is an intermediate confining unit of dense clay interspersed with beds of sand and calcareous clays that exists to a depth of up to 100 feet bls. The clay material observed on the North Tract is known as massive or structureless. Such clays are restrictive with very low levels of hydraulic conductivity, and are not conducive to development of preferential flow paths to the surficial or lower aquifers. The intermediate confining unit beneath the North Tract restricts the exchange of groundwater from the surficial aquifer to the upper Floridan aquifer. The upper Floridan aquifer begins at a depth of approximately 100 feet bls, and extends to a depth of approximately 340 feet bls. At about 340 feet bls, the upper Floridan aquifer transitions to the middle confining unit, which consists of finely grained, denser material that separates the interchange of water between the upper Floridan aquifer and the lower Floridan aquifer. Karst Features Karst features form as a result of water moving through rock that comprises the aquifer, primarily limestone, dissolving and forming conduits in the rock. Karst areas present a challenging environment to simulate through modeling. Models assume the subsurface to be a relatively uniform “sand box” through which it is easier to simulate groundwater flow. However, if the subsurface contains conduits, it becomes more difficult to simulate the preferential flows and their effect on groundwater flow paths and travel times. The District has designated parts of western Alachua County and western Marion County as a Sensitive Karst Area Basin. A Sensitive Karst Area is a location in which the porous limestone of the Floridan aquifer occurs within 20 feet of the land surface, and in which there is 10 to 20 inches of annual recharge to the Floridan aquifer. The designation of an area as being within the Sensitive Karst Area Basin does not demonstrate that it does, or does not, have subsurface features that are karstic in nature, or that would provide a connection between the surficial aquifer and the Floridan aquifer. The western portion of the North Tract is within the Sensitive Karst Area Basin. The two intensive-use areas on the North Tract that have associated stormwater facilities -- the cattle unloading area and the processing facility -- are outside of the Sensitive Karst Area Basin. The evidence was persuasive that karst features are more prominent to the west of the North Tract. In order to evaluate the presence of karst features on the North Tract, Mr. Andreyev performed a “desktop-type evaluation,” with a minimal field survey. The desktop review included a review of aerial photographs and an investigation of available data, including the Florida Geological Survey database of sinkhole occurrence in the area. The aerial photographs showed circular depressions suggestive of karst activity west and southwest of the North Tract, but no such depressions on the North Tract. Soil borings taken on the North Tract indicated the presence of layers of clayey sand, clays, and silts at a depth of 70 to 80 feet. Well-drilling logs taken during the development of the wells used for an aquifer performance test on the North Tract showed the limestone of the Floridan aquifer starting at a depth below ground surface of 70 to 80 feet. Other boring data generated on the North Tract suggests that there is greater than 100 feet of clay and sandy clay overburden above the Floridan aquifer on and in the vicinity of the North Tract. Regardless of site-specific differences, the observed confining layer separating the surficial aquifer from the Floridan aquifer is substantial, and not indicative of a karst environment. Aquifer performance tests performed on the North Tract were consistent in showing that drawdown in the surficial aquifer from the tests was minimal to non-detectable, which is strong evidence of an intact and low-permeability confining layer. The presence of well-developed drainage features on the North Tract is further evidence of a unit of confinement that is restricting water from going deeper into the subsurface, and forcing it to runoff to low-lying surface water features. Petitioners’ witnesses did not perform any site- specific analysis of karst features on or around the Sleepy Creek property. Their understanding of the nature of the karst systems in the region was described as “hypothetical or [] conceptual.” Dr. Kincaid admitted that he knew of no conduits on or adjacent to the North Tract. As a result of the data collected from the North Tract, Mr. Hearn opined that the potential for karst features on the property that provide an opening to the upper Floridan aquifer “is extremely remote.” Mr. Hearn’s opinion is consistent with the preponderance of the evidence in this case, and is accepted. In the event a surface karst feature were to manifest itself, Sleepy Creek has proposed that the surface feature be filled and plugged to reestablish the integrity of the confining layer. More to the point, the development of a surficial karst feature in an area influenced by irrigation would be sufficient grounds for the SJRWMD to reevaluate and modify the CUP to account for any changed conditions affecting the assumptions and bases for issuance of the CUP. Silver Springs, the Silver River, and the Ocklawaha River The primary, almost exclusive concern of Petitioners was the effect of the modified CUP and the nutrients from the proposed cattle ranch on Silver Springs, the Silver River, and the Ocklawaha River. Silver Springs Silver Springs has long been a well-known attraction in Florida. It is located just to the east of Ocala, Florida. Many of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal clear waters through famous glass-bottomed boats. For most of its recorded history, Silver Springs was the largest spring by volume in Florida. Beginning in the 1970s, it began to lose its advantage, and by the year 2000, Rainbow Springs, located in southwestern Marion County, surpassed Silver Springs as the state’s largest spring. Silver Springs exists at the top of the potentiometric surface of the Floridan aquifer. Being at the “top of the mountain,” when water levels in the Floridan aquifer decline, groundwater flow favors the lower elevation springs. Thus, surrounding springshed boundaries expand to take more water to maintain their baseflows, at the expense of the Silver Springs springshed, which contracts. Rainbow Springs shares an overlapping springshed with Silver Springs. The analogy used by Dr. Knight was of the aquifer as a bucket with holes at different levels, and with the Silver Springs “hole” near the top of the bucket. When the water level in the bucket is high, water will flow from the top hole. As the water level drops below that hole, it will preferentially flow from the lower holes. Rainbow Springs has a vent or outlet from the aquifer, that is 10 feet lower in elevation than that of Silver Springs. Coastal springs are lower still. Thus, as groundwater levels decline, the lower springs “pirate flow” from the upper springs. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. The water clarity, though still high as compared to other springs, has been reduced by 10 to 15 percent. Since the 1950s, macrophytic plants, i.e., rooted plants with seeds and flowers, have declined in population, while epiphytic and benthic algae have increased. Those plants are sensitive to increases in nitrogen in the water. Thus, Dr. Knight’s opinion that increases in nitrogen emerging from Silver Springs, calculated to have risen from just over 0.4 mg/l in the 1950s, to 1.1 mg/l in 2004, and to up to 1.5 mg/l at present,1/ have caused the observed vegetative changes is accepted. Silver River Silver Springs forms the headwaters for the Silver River, a spring run 5 1/2 miles in length, at which point it becomes a primary input to the Ocklawaha River. Issues of water clarity and alteration of the vegetative regime that exist at Silver Springs are also evident in the Silver River. In addition, the reduction in flow allows for more tannic water to enter the river, further reducing clarity. Dr. Dunn recognized the vegetative changes in the river, and opined that the “hydraulic roughness” caused by the increase in vegetation is likely creating a spring pool backwater at Silver Springs, thereby suppressing some of the flow from the spring. The Silver River has been designated as an Outstanding Florida Water. There are currently no Minimum Flows and Levels established by the District for the Silver River. Ocklawaha River The Ocklawaha River originates near Leesburg, Florida, at the Harris Chain of Lakes, and runs northward past Silver Springs. The Silver River is a major contributor to the flow of the Ocklawaha River. Due to the contribution of the Silver River and other spring-fed tributaries, the Ocklawaha River can take on the appearance of a spring run during periods of low rainfall. Historically, the Ocklawaha River flowed unimpeded to its confluence with the St. Johns River in the vicinity of Palatka, Florida. In the 1960s, as part of the Cross-Florida Barge Canal project, the Rodman Dam was constructed across the Ocklawaha River north of the Sleepy Creek property, creating a large reservoir known as the Rodman Pool. Dr. Knight testified convincingly that the Rodman Dam and Pool have altered the Ocklawaha River ecosystem, precipitating a decline in migratory fish populations and an increase in filamentous algae. At the point at which the Ocklawaha River flows past the Sleepy Creek property, it retains its free-flowing characteristics. Mill Creek, which has its headwaters on the North Tract, is a tributary of the Ocklawaha River. The Ocklawaha River, from the Eureka Dam south, has been designated as an Outstanding Florida Water. However, the Ocklawaha River at the point at which Mill Creek or other potential surface water discharges from the Sleepy Creek property might enter the river are not included in the Outstanding Florida Water designation. There are currently no Minimum Flows and Levels established by the District for the Ocklawaha River. The Silver Springs Springshed A springshed is that area from which a spring draws water. Unlike a surface watershed boundary, which is fixed based on land features, contours, and elevations, a springshed boundary is flexible, and changes depending on a number of factors, including rainfall. As to Silver Springs, its springshed is largest during periods of more abundant rainfall when the aquifer is replenished, and smaller during drier periods when groundwater levels are down, and water moves preferentially to springs and discharge points that are lower in elevation. The evidence in this case was conflicting as to whether the North Tract is in or out of the Silver Springs springshed boundary. Dr. Kincaid indicated that under some of the springshed delineations, part of the North Tract was out of the springshed, but over the total period of record, it is within the springshed. Thus, it was Dr. Kincaid’s opinion that withdrawals anywhere within the region will preferentially impact Silver Springs, though he admitted that he did not have the ability to quantify his opinion. Dr. Knight testified that the North Tract is within the Silver Springs “maximum extent” springshed at least part of the time, if not all the time. He did not opine as to the period of time in which the Silver Springs springshed was at its maximum extent. Dr. Bottcher testified that the North Tract is not within the Silver Springs springshed because there is a piezometric rise between North Tract and Silver Springs. Thus, in his opinion, withdrawals at the North Tract would not be withdrawing water going to Silver Springs. Dr. Dunn agreed that the North Tract is on the groundwater divide for Silver Springs. In his view, the North Tract is sometimes in, and sometimes out of the springshed depending on the potentiometric surface. In his opinion, the greater probability is that the North Tract is more often outside of the Silver Springs springshed, with seasonal and year—to—year variation. Dr. Dunn’s opinion provides the most credible explanation of the extent to which the North Tract sits atop that portion of the lower Floridan aquifer that feeds to Silver Springs. Thus, it is found that the groundwater divide exists to the south of the North Tract for a majority of the time, and water entering the Floridan aquifer from the North Tract will, more often than not, flow away from Silver Springs. Silver Springs Flow Volume The Silver Springs daily water discharge has been monitored and recorded since 1932. Over the longest part of the period of record, up to the 1960s, flows at Silver Springs averaged about 800 cubic feet per second (cfs). Through 1989, there was a reasonable regression between rainfall and springflow, based on average rainfalls. The long-term average rainfall in Ocala was around 50 inches per year, and long-term springflow was about 800 cfs, with deviations from average generally consistent with one another. Between 1990 and 1999, the relationship between rainfall and springflow declined by about 80 cubic feet per second. Thus, with average rainfall of 50 inches per year, the average springflow was reduced to about 720 cfs. From 2000 to 2009, there was an additional decline, such that the total cumulative decline for the 20-year period through 2009 was 250 cfs. Dr. Dunn agreed with Dr. Knight that after 2000, there was an abrupt and persistent reduction in flow of about 165 cfs. However, Dr. Dunn did not believe the post-2000 flow reduction could be explained by rainfall directly, although average rainfall was less than normal. Likewise, groundwater withdrawals did not offer an adequate explanation. Dr. Dunn described a natural 30-year cycle of wetter and drier periods known as the Atlantic Multidecadal Oscillation (AMO) that has manifested itself over the area for the period of record. From the 1940s up through 1970, the area experienced an AMO wet cycle with generally higher than normal rainfall at the Ocala rain station. For the next 30-year period, from 1970 up to 2000, the Ocala area ranged from a little bit drier to some years in which it was very, very dry. Dr. Dunn attributed the 80 cfs decline in Silver Springs flow recorded in the 1990s to that lower rainfall cycle. After 2000, when the next AMO cycle would be expected to build up, as it did post—1940, it did not happen. Rather, there was a particularly dry period around 2000 that Dr. Dunn believes to have had a dramatic effect on the lack of recovery in the post-2000 flows in the Silver River. According to Mr. Jenkins, that period of deficient rainfall extended through 2010. Around the year 2001, the relationship between rainfall and flow changed such that for a given amount of rainfall, there was less flow in the Silver River, with flow dropping to as low as 535 cfs after 2001. It is that reduction in flow that Dr. Knight has attributed to groundwater withdrawals. It should be noted that the observed flow of Silver Springs that formed the 1995 baseline conditions for the North Central Florida groundwater model that will be discussed herein was approximately 706 cfs. At the time of the final hearing in August 2014, flow at Silver Springs was 675 cfs. The reason offered for the apparent partial recovery was higher levels of rainfall, though the issue was not explored in depth. For the ten-year period centered on the year 2000, local water use within Marion and Alachua County, closer to Silver Springs, changed little -- around one percent per year. From a regional perspective, groundwater use declined at about one percent per year for the period from 1990 to 2010. The figures prepared by Dr. Knight demonstrate that the Sleepy Creek project area is in an area that has a very low density of consumptive use permits as compared to areas adjacent to Silver Springs and more clearly in the Silver Springs springshed. In Dr. Dunn’s opinion, there were no significant changes in groundwater use either locally or regionally that would account for the flow reduction in Silver Springs from 1990 to 2010. In that regard, the environmental report prepared by Dr. Dunn and submitted with the CUP modification application estimated that groundwater withdrawals accounted for a reduction in flow at Silver Springs of approximately 20 cfs as measured against the period of record up to the year 2000, with most of that reduction attributable to population growth in Marion County. In the March 2014, environmental impacts report, Dr. Dunn described reductions in the stream flow of not only the Silver River, but of other tributaries of the lower Ocklawaha River, including the upper Ocklawaha River at Moss Bluff and Orange Creek. However, an evaluation of the Ocklawaha River water balance revealed there to be additional flow of approximately 50 cfs coming into the Ocklawaha River at other stations. Dr. Dunn suggested that changes to the vent characteristics of Silver Springs, and the backwater effects of increased vegetation in the Silver River, have resulted in a redistribution of pressure to other smaller springs that discharge to the Ocklawaha River, accounting for a portion of the diminished flow at Silver Springs. The Proposed Cattle Operation Virtually all beef cattle raised in Florida, upon reaching a weight of approximately 875 pounds, are shipped to Texas or Kansas to be fattened on grain to the final body weight of approximately 1,150 pounds, whereupon they are slaughtered and processed. The United States Department of Agriculture has a certification for grass—fed beef which requires that, after an animal is weaned, it can only be fed on green forage crops, including grasses, and on corn and grains that are cut green and before they set seed. The forage crops may be grazed or put into hay or silage and fed when grass and forage is dormant. The benefit of grass feeding is that a higher quality meat is produced, with a corresponding higher market value. Sleepy Creek plans to develop the property as a grass- fed beef production ranch, with pastures and related loading/unloading and slaughter/processing facilities where calves can be fattened on grass and green grain crops to a standard slaughter weight, and then slaughtered and processed locally. By so doing, Sleepy Creek expects to save the transportation and energy costs of shipping calves to the Midwest, and to generate jobs and revenues by employing local people to manage, finish, and process the cattle. As they currently exist, pastures proposed for irrigation have been cleared and seeded, and have “fairly good grass production.” The purpose of the irrigation is to enhance the production and quality of the grass in order to maintain the quality and reliability of feed necessary for the production of grass-fed beef. East Tract Cattle Operation The East Tract is 1,242 acres in size, substantially all of which was previously cleared, irrigated, and used for sod production. The proposed CUP permit authorizes the irrigation of 611 acres of pasture under six existing center pivots. The remaining 631 acres will be used as improved, but unirrigated, pasture. Under the proposed permit, a maximum of 1,207 cattle would be managed on the East Tract. Of that number, 707 cattle would be grazed on the irrigated paddocks, and 500 cattle would be grazed on the unirrigated improved pastures. If the decision is made to forego irrigation on the East Tract, with the water allocation being used on the North Tract or not at all, the number of cattle grazed on the six center pivot pastures would be decreased from 707 cattle to 484 cattle. The historic use of the East Tract as a sod farm resulted in high phosphorus levels in the soil from fertilization, which has made its way to Daisy Creek. Sleepy Creek has proposed a cattle density substantially below that allowed by application of the formulae in the Nutrient Management Plan in order to “mine” the phosphorus levels in the soil over time. North Tract Cattle Operation The larger North Tract includes most of the “new” ranch activities, having no previous irrigation, and having been put to primarily silvicultural use with limited pasture prior to its acquisition by Sleepy Creek. The ranch’s more intensive uses, i.e., the unloading corrals and the slaughter house, are located on the North Tract. The North Tract is 7,207 acres in size. Of that, 1,656 acres are proposed for irrigation by means of 15 center- pivot irrigation systems. In addition to the proposed irrigated pastures, the North Tract includes 2,382 acres of unirrigated improved pasture, of which approximately 10 percent is wooded. Under the proposed permit, a maximum of 6,371 cattle would be managed on the North Tract. Of that number, 3,497 cattle would be grazed on the irrigated paddocks (roughly 2.2 head of cattle per acre), and 2,374 cattle would graze on the improved pastures (up to 1.1 head of cattle per acre). The higher cattle density in the irrigated pastures can be maintained due to the higher quality grass produced as a result of irrigation. The remaining 500 cattle would be held temporarily in high-concentration corrals, either after offloading or while awaiting slaughter. On average, there will be fewer than 250 head of cattle staged in those high-concentration corrals at any one time. In the absence of irrigation, the improved pasture on the North Tract could sustain about 4,585 cattle. Nutrient Management Plan, Water Conservation Plan, and BMPs The CUP and ERP applications find much of their support in the implementation of the Nutrient Management Plan (NMP), the Water Conservation Plan, and Best Management Practices (BMPs). The NMP sets forth information designed to govern the day to day operations of the ranch. Those elements of the NMP that were the subject of substantive testimony and evidence at the hearing are discussed herein. Those elements not discussed herein are found to have been supported by Sleepy Creek’s prima facie case, without a preponderance of competent and substantial evidence to the contrary. The NMP includes a herd management plan, which describes rotational grazing and the movement of cattle from paddock to paddock, and establishes animal densities designed to maintain a balance of nutrients on the paddocks, and to prevent overgrazing. The NMP establishes fertilization practices, with the application of fertilizer based on crop tissue analysis to determine need and amount. Thus, the application of nitrogen- based fertilizer is restricted to that capable of ready uptake by the grasses and forage crops, limiting the amount of excess nitrogen that might run off of the pastures or infiltrate past the root zone. The NMP establishes operation and maintenance plans that incorporate maintenance and calibration of equipment, and management of high-use areas. The NMP requires that records be kept of, among other things, soil testing, nutrient application, herd rotation, application of irrigation water, and laboratory testing. The irrigation plan describes the manner and schedule for the application of water during each irrigation cycle. Irrigation schedules for grazed and cropped scenarios vary from pivot to pivot based primarily on soil type. The center pivots proposed for use employ high-efficiency drop irrigation heads, resulting in an 85 percent system efficiency factor, meaning that there is an expected evaporative loss of 15 percent of the water before it becomes available as water in the soil. That level of efficiency is greater than the system efficiency factor of 80 percent established in CUP A.H. section 12.5.2. Other features of the irrigation plan include the employment of an irrigation manager, installation of an on-site weather station, and cumulative tracking of rain and evapotranspiration with periodic verification of soil moisture conditions. The purpose of the water conservation practices is to avoid over application of water, limiting over-saturation and runoff from the irrigated pastures. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2/ Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule 5M-11.003 (“implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.”). Rotational Grazing Rotational grazing is a practice by which cattle are allowed to graze a pasture for a limited period of time, after which they are “rotated” to a different pasture. The 1,656 acres proposed for irrigation on the North Tract are to be divided into 15 center-pivot pastures. Each individual pasture will have 10 fenced paddocks. The 611 acres of irrigated pasture on the East Tract are divided into 6 center-pivot pastures. The outer fence for each irrigated pasture is to be a permanent “hard” fence. Separating the internal paddocks will be electric fences that can be lowered to allow cattle to move from paddock to paddock, and then raised after they have moved to the new paddock. The NMP for the North Tract provides that cattle are to be brought into individual irrigated pastures as a single herd of approximately 190 cattle and placed into one of the ten paddocks. They will be moved every one to three days to a new paddock, based upon growing conditions and the reduction in grass height resulting from grazing. In this way, the cattle are rotated within the irrigated pasture, with each paddock being used for one to three days, and then rested until each of the other paddocks have been used, whereupon it will again be used in the rotation. The East Tract NMP generally provides for rotation based on the height of the pasture grasses, but is designed to provide a uniform average of cattle per acre per year. Due to the desire to “mine” phosphorus deposited during the years of operation of the East Tract as a sod farm, the density of cattle on the irrigated East Tract pastures is about 30 percent less than that proposed for the North Tract. The East Tract NMP calls for a routine pasture rest period of 15 to 30 days. Unlike dairy farm pastures, where dairy cows traverse a fixed path to the milking barn several times a day, there will be minimal “travel lanes” within the pastures or between paddocks. There will be no travel lanes through wetlands. If nitrogen-based fertilizer is needed, based upon tissue analysis of the grass, fertilizer is proposed for application immediately after a paddock is vacated by the herd. By so doing, the grass within each paddock will have a sufficient period to grow and “flush up” without grazing or traffic, which results in a high—quality grass when the cattle come back around to feed. Sleepy Creek proposes that rotational grazing is to be practiced on improved pastures and irrigated pastures alike. The rotational practices on the improved East Tract and North Tract pastures are generally similar to those practiced on the irrigated pastures. The paddocks will have permanent watering troughs, with one trough serving two adjacent paddocks. The troughs will be raised to prevent “boggy areas” from forming around the trough. Since the area around the troughs will be of a higher use, Sleepy Creek proposes to periodically remove accumulated manure, and re-grade if necessary. Other cattle support items, including feed bunkers and shade structures are portable and can be moved as conditions demand. Forage Crop Production The primary forage crop on the irrigated pastures is to be Bermuda grass. Bermuda grass or other grass types tolerant of drier conditions will be used in unirrigated pastures. During the winter, when Bermuda grass stops growing, Sleepy Creek will overseed the North Tract pastures with ryegrass or other winter crops. Due to the limitation on irrigation water, the East Tract NMP calls for no over-seeding for production of winter crops. Crops do not grow uniformly during the course of a year. Rather, there are periods during which there are excess crops, and periods during which the crops are not growing enough to keep up with the needs of the cattle. During periods of excess, Sleepy Creek will cut those crops and store them as haylage to be fed to the cattle during lower growth periods. The North Tract management plan allows Sleepy Creek to dedicate one or more irrigated pastures for the exclusive production of haylage. If that option is used, cattle numbers will be reduced in proportion to the number of pastures dedicated to haylage production. As a result of the limit on irrigation, the East Tract NMP does not recommend growing supplemental feed on dedicated irrigation pivot pastures. Direct Wetland Impacts Approximately 100 acres proposed for irrigation are wetlands or wetland buffer. Those areas are predominantly isolated wetlands, though some have surface water connections to Mill Creek, a water of the state. Trees will be cut in the wetlands to allow the pivot to pass overhead. Tree cutting is an exempt agricultural activity that does not require a permit. There was no persuasive evidence that cutting trees will alter the fundamental benefit of the wetlands or damage water resources of the District. The wetlands and wetland buffer will be subject to the same watering and fertigation regimen as the irrigated pastures. The application of water to wetlands, done concurrently with the application of water to the pastures, will occur during periods in which the pasture soils are dry. The incidental application of water to the wetlands during dry periods will serve to maintain hydration of the wetlands, which is considered to be a benefit. Fertilizers will be applied through the irrigation arms, a process known as fertigation. Petitioners asserted that the application of fertilizer onto the wetlands beneath the pivot arms could result in some adverse effects to the wetlands. However, Petitioners did not quantify to what extent the wetlands might be affected, or otherwise describe the potential effects. Fertigation of the wetlands will promote the growth of wetland plants. Nitrogen applied through fertigation will be taken up by plants, or will be subject to denitrification -- a process discussed in greater detail herein -- in the anaerobic wetland soils. The preponderance of the evidence indicated that enhanced wetland plant growth would not rise to a level of concern. Since most of the affected wetlands are isolated wetlands, there is expected to be little or no discharge of nutrients from the wetlands. Even as to those wetlands that have a surface water connection, most, if not all of the additional nitrogen applied through fertigation will be accounted for by the combined effect of plant uptake and denitrification. Larger wetland areas within an irrigated pasture will be fenced at the buffer line to prevent cattle from entering. The NMP provided a blow-up of the proposed fencing related to a larger wetland on Pivot 8. Although other figures are not to the same scale, it appears that larger wetlands associated with Pivots 1, 2, 3, and 12 will be similarly fenced. Cattle would be allowed to go into the smaller, isolated wetlands. Cattle going into wetlands do not necessarily damage the wetlands. Any damage that may occur is a function of density, duration, and the number of cattle. The only direct evidence of potential damage to wetlands was the statement that “[i]f you have 6,371 [cattle] go into a wetland, there may be impacts.” The NMP provides that pasture use will be limited to herds of approximately 190 cattle, which will be rotated from paddock to paddock every two to three days, and which will allow for “rest” periods of approximately 20 days. There will be no travel lanes through any wetland. Thus, there is no evidence to support a finding that the cattle at the density, duration, and number proposed will cause direct adverse effects to wetlands on the property. High Concentration Areas Cattle brought to the facility are to be unloaded from trucks and temporarily corralled for inspection. For that period, the cattle will be tightly confined. Cattle that have reached their slaughter weight will be temporarily held in corrals associated with the processing plant. The stormwater retention ponds used to capture and store runoff from the offloading corral and the processing plant holding corral are part of a normal and customary agricultural activity, and are not part of the applications and approvals that are at issue in this proceeding. The retention ponds associated with the high-intensity areas do not require permits because they do not exceed one acre in size or impound more than 40 acre-feet of water. Nonetheless, issues related to the retention ponds were addressed by Petitioners and Sleepy Creek, and warrant discussion here. The retention ponds are designed to capture 100 percent of the runoff and entrained nutrients from the high concentration areas for a minimum of a 24—hour/25—year storm event. If rainfall occurs in excess of the designed storm, the design is such that upon reaching capacity, only new surface water coming to the retention pond will be discharged, and not that containing high concentrations of nutrients from the initial flush of stormwater runoff. Unlike the stormwater retention berms for the pastures, which are to be constructed from the first nine inches of permeable topsoil on the property, the corral retention ponds are to be excavated to a depth of six feet which, based on soil borings in the vicinity, will leave a minimum of two to four feet of clay beneath the retention ponds. In short, the excavation will penetrate into the clay layer underlying the pond sites, but will not penetrate through that layer. The excavated clay will be used to form the side slopes of the ponds, lining the permeable surficial layer and generally making the ponds impermeable. Organic materials entering the retention ponds will form an additional seal. An organic seal is important in areas in which retention ponds are constructed in sandy soil conditions. Organic sealing is less important in this case, where clay forms the barrier preventing nutrients from entering the surficial aquifer. Although the organic material is subject to periodic removal, the clay layer will remain to provide the impermeable barrier necessary to prevent leakage from the ponds. Dr. Bottcher testified that if, during excavation of the ponds, it was found that the remaining in-situ clay layer was too thin, Sleepy Creek would implement the standard practice of bringing additional clay to the site to ensure adequate thickness of the liner. Nutrient Balance The goal of the NMP is to create a balance of nutrients being applied to and taken up from the property. Nitrogen and phosphorus are the nutrients of primary concern, and are those for which specific management standards are proposed. Nutrient inputs to the NMP consist generally of deposition of cattle manure (which includes solid manure and urine), recycling of plant material and roots from the previous growing season, and application of supplemental fertilizer. Nutrient outputs to the NMP consist generally of volatization of ammonia to the atmosphere, uptake and utilization of the nutrients by the grass and crops, weight gain of the cattle, and absorption and denitrification of the nutrients in the soil. The NMP, and the various models discussed herein, average the grass and forage crop uptake and the manure deposition to match that of a 1,013 pound animal. That average weight takes into account the fact that cattle on the property will range from calf weight of approximately 850 pounds, to slaughter weight of 1150 pounds. Nutrients that are not accounted for in the balance, e.g., those that become entrained in stormwater or that pass through the plant root zone without being taken up, are subject to runoff to surface waters or discharge to groundwater. Generally, phosphorus not taken up by crops remains immobile in the soil. Unless there is a potential for runoff to surface waters, the nutrient balance is limited by the amount of nitrogen that can be taken up by the crops. Due to the composition of the soils on the property, the high water table, and the relatively shallow confining layer, there is a potential for surface runoff. Thus, the NMP was developed using phosphorus as the limiting nutrient, which results in nutrient application being limited by the “P-index.” A total of 108 pounds of phosphorus per acre/per year can be taken up and used by the irrigated pasture grasses and forage crops. Therefore, the total number of cattle that can be supported on the irrigated pastures is that which, as a herd, will deposit an average of 108 pounds of phosphorus per year over the irrigated acreage. Therefore, Sleepy Creek has proposed a herd size and density based on calculations demonstrating that the total phosphorus contained in the waste excreted by the cattle equals the amount taken up by the crops. A herd producing 108 pounds per acre per year of phosphorus is calculated to produce 147 pounds of nitrogen per acre per year. The Bermuda grass and forage crops proposed for the irrigated fields require 420 pounds of nitrogen per acre per year. As a result of the nitrogen deficiency, additional nitrogen-based fertilizer to make up the shortfall is required to maintain the crops. Since phosphorus needs are accounted for by animal deposition, the fertilizer will have no phosphorus. The NMP requires routine soil and plant tissue tests to determine the amount of nitrogen fertilizer needed. By basing the application of nitrogen on measured rather than calculated needs, variations in inputs, including plant decomposition and atmospheric deposition, and outputs, including those affected by weather, can be accounted for, bringing the full nutrient balance into consideration. The numeric values for crop uptakes, manure deposition, and other estimates upon which the NMP was developed were based upon literature, values, and research performed and published by the University of Florida and the Natural Resource Conservation Service. Dr. Bottcher testified convincingly that the use of such values is a proven and reliable method of developing a balance for the operation of similar agricultural operations. A primary criticism of the NMP was its expressed intent to “reduce” or “minimize” the transport of nutrients to surface waters and groundwater, rather than to “negate” or “prevent” such transport. Petitioners argue that complete prevention of the transport of nutrients from the property is necessary to meet the standards necessary for issuance of the CUP and ERP. Mr. Drummond went into some detail regarding the total mass of nutrients expected to be deposited onto the ground from the cattle, exclusive of fertilizer application. In the course of his testimony, he suggested that the majority of the nutrients deposited on the land surface “are going to make it to the surficial aquifer and then be carried either to the Floridan or laterally with the groundwater flow.” However, Mr. Drummond performed no analysis on the fate of nitrogen through uptake by crops, volatization, or soil treatment, and did not quantify the infiltration of nitrogen to groundwater. Furthermore, he was not able to provide any quantifiable estimate on any effect of nutrients on Mill Creek, the Ocklawaha River, or Silver Springs. In light of the effectiveness of the nutrient balance and other elements of the NMP, along with the retention berm system that will be discussed herein, Mr. Drummond’s assessment of the nutrients that might be expected to impact water resources of the District is contrary to the greater weight of the evidence. Mr. Drummond’s testimony also runs counter to that of Dr. Kincaid, who performed a particle track analysis of the fate of water recharge from the North Tract. In short, Dr. Kincaid calculated that of the water that makes it as recharge from the North Tract to the surficial aquifer, less than one percent is expected to make its way to the upper Floridan aquifer, with that portion originating from the vicinity of Pivot 6. Recharge from the other 14 irrigated pastures was ultimately accounted for by evapotranspiration or emerged at the surface and found its way to Mill Creek. The preponderance of the competent, substantial evidence adduced at the final hearing supports the effectiveness of the NMPs for the North Tract and East Tract at managing the application and use of nutrients on the property, and minimizing the transport of nutrients to surface water and groundwater resources of the District. North Central Florida Model All of the experts involved in this proceeding agreed that the use of groundwater models is necessary to simulate what might occur below the surface of the ground. Models represent complex systems by applying data from known conditions and impacts measured over a period of years to simulate the effects of new conditions. Models are imperfect, but are the best means of predicting the effects of stresses on complex and unseen subsurface systems. The North Central Florida (NCF) model is used to simulate impacts of water withdrawals on local and regional groundwater levels and flows. The NCF model simulates the surficial aquifer, the upper Floridan aquifer, and the lower Floridan aquifer. Those aquifers are separated from one another by relatively impervious confining units. The intermediate confining unit separates the surficial aquifer from the upper Floridan aquifer. The intermediate confining unit is not present in all locations simulated by the NCF model. However, the evidence is persuasive that the intermediate confining unit is continuous at the North Tract, and serves to effectively isolate the surficial aquifer from the upper Floridan aquifer. The NCF model is not a perfect depiction of what exists under the land surface of the North Tract or elsewhere. It was, however, acknowledged by the testifying experts in this case, despite disagreements as to the extent of error inherent in the model, to be the best available tool for calculating the effects of withdrawals of water within the boundary of the model. The NCF model was developed and calibrated over a period of years, is updated routinely as data becomes available, and has undergone peer review. Aquifer Performance Tests In order to gather site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, a series of three aquifer performance tests (APTs) was conducted on the North Tract. The first two tests were performed by Sleepy Creek, and the third by the District. An APT serves to induce stress on the aquifer by pumping from a well at a high rate. By observing changes in groundwater levels in observation wells, which can be at varying distances from the extraction well, one can extrapolate the nature of the subsurface. In addition, well-completion reports for the various withdrawal and observation wells provide actual data regarding the composition of subsurface soils, clays, and features of the property. The APT is particularly useful in evaluating the ability of the aquifer to produce water, and in calculating the transmissivity of the aquifer. Transmissivity is a measure of the rate at which a substance passes through a medium and, as relevant to this case, measures how groundwater flows through an aquifer. The APTs demonstrated that the Floridan aquifer is capable of producing water at the rate requested. The APT drawdown contour measured in the upper Floridan aquifer was greater than that predicted from a simple run of the NCF model, but the lateral extent of the drawdown was less than predicted. The most reasonable conclusion to be drawn from the combination of greater than expected drawdown in the upper Floridan aquifer with less than expected extent is that the transmissivity of the aquifer beneath the North Tract is lower than the NCF model assumptions. The conclusion that the transmissivity of the aquifer at the North Tract is lower than previously estimated means that impacts from groundwater extraction would tend to be more vertical than horizontal, i.e., the drawdown would be greater, but would be more localized. As such, for areas of lower than estimated transmissivity, modeling would over-estimate off-site impacts from the extraction. NCF Modeling Scenarios The initial NCF modeling runs were based on an assumed withdrawal of 2.39 mgd, an earlier -- though withdrawn - - proposal. The evidence suggests that the simulated well placement for the 2.39 mgd model run was entirely on the North Tract. Thus, the results of the model based on that withdrawal have some limited relevance, especially given that the proposed CUP allows for all of the requested 1.46 mgd of water to be withdrawn from North Tract wells at the option of Sleepy Creek, but will over-predict impacts from the permitted rate of withdrawal. A factor that was suggested as causing a further over-prediction of drawdown in the 2.39 mgd model run was the decision, made at the request of the District, to exclude the input of data of additional recharge to the surficial aquifer, wetlands and surface waters from the irrigation, and the resulting diminution in soil storage capacity. Although there is some merit to the suggestion that omitting recharge made the model results “excessively conservative,” the addition of recharge to the model would not substantially alter the predicted impacts. A model run was subsequently performed based on a presumed withdrawal of 1.54 mgd, a rate that remains slightly more than, but still representative of, the requested amount of 1.46 mgd. The 1.54 mgd model run included an input for irrigation recharge. The simulated extraction points were placed on the East Tract and North Tract in the general configuration as requested in the CUP application. The NCF is designed to model the impacts of a withdrawal based upon various scenarios, identified at the hearing as Scenarios A, B, C, and D. Scenario A is the baseline condition for the NCF model, and represents the impacts of all legal users of water at their estimated actual flow rates as they existed in 1995. Scenario B is all existing users, not including the applicant, at end-of-permit allocations. Scenario C is all existing users, including the applicant, at current end-of-permit allocations. Scenario D is all permittees at full allocation, except the applicant which is modeled at the requested (i.e., new or modified) end-of-permit allocation. To simulate the effects of the CUP modification, simulations were performed on scenarios A, C, and D. In order to measure the specific impact of the modification of the CUP, the Scenario C impacts to the surficial, upper Floridan, and lower Floridan aquifers were compared with the Scenario D impacts to those aquifers. In order to measure the cumulative impact of the CUP, the Scenario A actual-use baseline condition was compared to the Scenario D condition which predicts the impacts of all permitted users, including the applicant, pumping at full end-of-permit allocations. The results of the NCF modeling indicate the following: 2.39 mgd - Specific Impact The surficial aquifer drawdown from the simulated 2.39 mgd withdrawal was less than 0.05 feet on-site and off- site, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The upper Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at between 0.30 and 0.12 feet on-site, and between 0.30 and 0.01 feet off-site. The higher off-site figures are immediately proximate to the property. The lower Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at less than 0.05 feet at all locations, and at or less than 0.02 feet within six miles of the North Tract. 2.39 mgd - Cumulative Impact The cumulative impact to the surficial aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, was less than 0.05 feet on-site, and off-site to the north and east, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The cumulative impact to the upper Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 0.4 feet to 0.8 feet over all pertinent locations. The cumulative impact to the lower Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 1.0 to 1.9 feet over all pertinent locations. The conclusion drawn by Mr. Andreyev that the predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals is supported by the evidence and accepted. 1.54 mgd - Specific Impact The NCF model runs based on the more representative 1.54 mgd withdrawal predicted a surficial aquifer drawdown of less than 0.01 feet (i.e., no drawdown contour shown) on the North Tract, and a 0.01 to 0.02 foot drawdown at the location of the East Tract. The drawdown of the upper Floridan aquifer from the CUP modification was predicted at up to 0.07 feet on the property, and generally less than 0.05 feet off-site. There were no drawdown contours at the minimum 0.01 foot level that came within 9 miles of Silver Springs. The lower Floridan aquifer drawdown from the CUP modification was predicted at less than 0.01 feet (i.e., no drawdown contour shown) at all locations. 1.54 mgd - Cumulative Impact A comparison of the cumulative drawdown contours for the 2.36 mgd model and 1.54 mgd model show there to be a significant decrease in predicted drawdowns to the surficial and upper Floridan aquifers, with the decrease in the upper Floridan aquifer drawdown being relatively substantial, i.e., from 0.5 to 0.8 feet on-site predicted for the 2.36 mgd withdrawal, to 0.4 to 0.5 feet on-site for the 1.54 mgd model. Given the small predicted individual impact of the CUP on the upper Floridan aquifer, the evidence is persuasive that the cumulative impacts are the result of other end-of-permit user withdrawals. The drawdown contour for the lower Floridan aquifer predicted by the 1.54 mgd model is almost identical to that of the 2.36 mgd model, thus supporting the conclusion that predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals. Modeled Effect on Silver Springs As a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs. The net cumulative impact in spring flow as measured from 1995 conditions to the scenario in which all legal users, including Sleepy Creek, are pumping at full capacity at their end-of-permit rates for one year3/ is roughly 35.4 cfs, which is approximately 5 percent of Silver Springs’ current flow. However, as a result of the redistribution of the Sleepy Creek withdrawal, which is, in its current iteration, a legal and permitted use, the cumulative effect of the CUP modification at issue is an increase in flow of 0.l5 cfs. Dr. Kincaid agreed that there is more of an impact to Silver Springs when the pumping allowed by the CUP is located on the East Tract than there is on the North Tract, but that the degree of difference is very small. Dr. Knight testified that effect on the flow of Silver Springs from relocating the 1.46 mgd withdrawal from the East Tract to the North Tract would be “zero.” The predicted increase of 0.15 cfs is admittedly miniscule when compared to the current Silver Springs springflow of approximately 675 cfs. However, as small as the modeled increase may be -- perhaps smaller than its “level of certainty” -- it remains the best evidence that the impact of the CUP modification to the flow of Silver Springs will be insignificant at worst, and beneficial at best. Opposition to the NCF Model Petitioners submitted considerable evidence designed to call the results generated by the District’s and Sleepy Creek’s NCF modeling into question. Karst Features A primary criticism of the validity of the NCF model was its purported inability to account for the presence of karst features, including conduits, and their effect on the results. It was Dr. Kincaid’s opinion that the NCF model assigned transmissivity values that were too high, which he attributed to the presence of karst features that are collecting flow and delivering it to springs. He asserted that, instead of assuming the presence of karst features, the model was adjusted to raise the overall capacity of the porous medium to transmit water, and thereby match the observed flows. In his opinion, the transmissivity values of the equivalent porous media were raised so much that the model can no longer be used to predict drawdowns. That alleged deficiency in the model is insufficient for two reasons. First, as previously discussed in greater detail, the preponderance of the evidence in this case supports a finding that there are no karst features in the vicinity of the North Tract that would provide preferential pathways for water flow so as to skew the results of the NCF model. Second, Dr. Kincaid, while acknowledging that the NCF model is the best available tool for predicting impacts from groundwater extraction on the aquifer, suggested that a hybrid porous media and conduit model would be a better means of predicting impacts, the development of which would take two years or more. There is no basis for the establishment of a de facto moratorium on CUP permitting while waiting for the development of a different and, in this case, unnecessary model. For the reasons set forth herein, it is found that the NCF model is sufficient to accurately and adequately predict the effects of the Sleepy Creek groundwater withdrawals on the aquifers underlying the property, and to provide reasonable assurance that the standards for such withdrawals have been met. Recharge to the Aquifer Petitioners argued that the modeling results showing little significant drawdown were dependent on the application of unrealistic values for recharge or return flow from irrigation. In a groundwater model, as in the physical world, some portion of the water extracted from the aquifer is predicted to be returned to the aquifer as recharge. If more water is applied to the land surface than is being accounted for by evaporation, plant uptake and evapotranspiration, surface runoff, and other processes, that excess water may seep down into the aquifer as recharge. Recharge serves to replenish the aquifer and offset the effects of the groundwater withdrawal. Dr. Kincaid opined that the NCF modeling performed for the CUP application assigned too much water from recharge, offsetting the model's prediction of impacts to other features. It is reasonable to assume that there is some recharge associated with both agricultural and public supply uses. However, the evidence suggests that the impact of recharge on the overall NCF model results is insignificant on the predicted impacts to Silver Springs, the issue of primary concern. Mr. Hearn ran a simulation using the NCF model in which all variables were held constant, except for recharge. The difference between the “with recharge” and “without recharge" simulations at Silver Springs was 0.002 cfs. That difference is not significant, and is not suggestive of adverse impacts on Silver Springs from the CUP modification. Dr. Kincaid testified that “the recharge offset on the property is mostly impacting the surficial aquifer,” and that “the addition of recharge in this case didn't have much of an impact on the upper Floridan aquifer system.” As such, the effect of adding recharge to the model would be as to the effect of groundwater withdrawal on wetlands or surface water bodies, and not on springs. As previously detailed, the drawdown of the surficial aquifer simulated for the 2.39 mgd “no recharge” scenario were less than 0.05 feet on-site and off-site, except for a predicted 0.07 foot drawdown to the west of the North Tract. The predicted drawdown of the surficial aquifer for the 1.54 mgd “with recharge” scenario was 0.02 feet or less. The preponderance of the evidence supports a finding that drawdowns of either degree are less than that at which adverse impacts to wetlands or surface waters would occur. Thus, issues related to the recharge or return flows from irrigation are insufficient to support a finding or conclusion that the NCF model failed to provide reasonable assurance that the standards for issuance of the CUP modification were met. External Boundaries The boundaries of the NCF model are not isolated from the rest of the physical world. Rather, groundwater flows into the modeled area from multiple directions, and out of the modeled area in multiple directions. Inflows to the model area are comprised of recharge, which is an assigned value, and includes water infiltrating and recharging the aquifer from surface waters; injection wells; upward and downward leakage from lower aquifers; and flow across the external horizontal boundaries. Outflows from the model area include evapotranspiration; discharge to surface waters, including springs and rivers; extraction from wells; upward and downward leakage from lower aquifers; and flow against the external model boundaries. Dr. Kincaid testified that flow across the external model boundary is an unknown and unverifiable quantity which increases the uncertainty in the model. He asserted that in the calibrated version of the model, there is no way to check those flows against data. His conclusion was that the inability of the NCF model to accurately account for external boundary flow made the margin of error so great as to make the model an unreliable tool with which to assess whether the withdrawal approved by the proposed CUP modification will increase or decrease drawdown at Silver Springs. The District correlates the NCF model boundaries with a much larger model developed by the United States Geological Survey, the Peninsula of Florida Model, more commonly referred to as the Mega Model, which encompasses most of the State of Florida and part of Southeast Georgia. The Mega Model provides a means to acknowledge that there are stresses outside the NCF model, and to adjust boundary conditions to account for those stresses. The NCF is one of several models that are subsets of the Mega Model, with the grids of the two models being “nested” together. The 1995 base year of the NCF model is sufficiently similar to the 1993-1994 base year of the Mega Model as to allow for a comparison of simulated drawdowns calculated by each of the models. By running a Mega Model simulation of future water use, and applying the change in that use from 1993 base year conditions, the District was able to come to a representative prediction of specific boundary conditions for the 1995 NCF base year, which were then used as the baseline for simulations of subsequent conditions. In its review of the CUP modification, the District conducted a model validation simulation to measure the accuracy of the NCF model against observed conditions, with the conditions of interest being the water flow at Silver Springs. The District ran a simulation using the best information available as to water use in the year 2010, the calculated boundary conditions, irrigation, pumping, recharge, climatic conditions, and generally “everything that we think constitutes that year.” The discharge of water at Silver Springs in 2010 was measured at 580 cfs. The discharge simulated by the NCF model was 545 cfs. Thus, the discharge predicted by the NCF model simulation was within six percent of the observed discharge. Such a result is generally considered in the modeling community to be “a home run.” Petitioners’ objections to the calculation of boundary conditions for the NCF model are insufficient to support a finding that the NCF model is not an appropriate and accurate tool for determining that reasonable assurance has been provided that the standards for issuance of the CUP modification were met. Cumulative Impact Error As part of the District’s efforts to continually refine the NCF, and in conjunction with a draft minimum flows and levels report for Silver Springs and the Silver River, the cumulative NCF model results for the period of baseline to 2010 were compared with the simulated results from the Northern District Model (NDF), a larger model that overlapped the NCF. As a result of the comparison, which yielded different results, it was discovered that the modeler had “turned off” not only the withdrawal pumps, but inputs to the aquifer from drainage wells and sinkholes as well. When those inputs were put back into the model run, and effects calculated only from withdrawals between the “pumps-off” condition and 2010 pumping conditions, the cumulative effect of the withdrawals was adjusted from a reduction in the flow at Silver Springs of 29 cfs to a reduction of between 45 and 50 cfs, an effect described as “counterintuitive.” Although that result has not undergone peer review, and remains subject to further review and comparison with the Mega Model, it was accepted by the District representative, Mr. Bartol. Petitioners seized upon the results of the comparison model run as evidence of the inaccuracy and unreliability of the NCF model. However, the error in the NCF model run was not the result of deficiencies in the model, but was a data input error. Despite the error in the estimate of the cumulative effect of all users at 2010 levels, the evidence in this case does not support a finding that the more recent estimates of specific impact from the CUP at issue were in error. NCF Model Conclusion As has been discussed herein, a model is generally the best means by which to calculate conditions and effects that cannot be directly observed. The NCF model is recognized as being the best tool available for determining the subsurface conditions of the model domain, having been calibrated over a period of years and subject to peer review. It should be recognized that the simulations run using the NCF model represent the worst—case scenario, with all permittees simultaneously drawing at their full end-of-permit allocations. There is merit to the description of that occurrence as being “very remote.” Thus, the results of the modeling represent a conservative estimate of potential drawdown and impacts. While the NCF model is subject to uncertainty, as is any method of predicting the effects of conditions that cannot be seen, the model provides reasonable assurance that the conditions simulated are representative of the conditions that will occur as a result of the withdrawals authorized by the CUP modification. Environmental Resource Permit The irrigation proposed by the CUP will result in runoff from the North Tract irrigated pastures in excess of that expected from the improved pastures, due in large measure to the diminished storage capacity of the soil. Irrigation water will be applied when the soils are dry, and capable of absorbing water not subject to evaporation or plant uptake. The irrigation water will fill the storage space that would exist without irrigation. With irrigation water taking up the capacity of the soil to hold water, soils beneath the irrigation pivots will be less capable of retaining additional moisture during storm events. Thus, there is an increased likelihood of runoff from the irrigated pastures over that expected with dry soils. The increase in runoff is expected to be relatively small, since there should be little or no irrigation needed during the normal summer wet season. The additional runoff may have increased nutrient levels due to the increased cattle density made possible by the irrigation of the pastures. The CUP has a no—impact requirement for water quality resulting from the irrigation of the improved pasture. Thus, nutrients leaving the irrigated pastures may not exceed those calculated to be leaving the existing pre-development use as improved pastures. Retention Berms The additional runoff and nutrient load is proposed to be addressed by constructing a system of retention berms, approximately 50,0004/ feet in length, which is intended to intercept, retain, and provide treatment for runoff from the irrigated pasture. The goal of the system is to ensure that post—development nutrient loading from the proposed irrigated pastures will not exceed the pre—development nutrient loading from the existing improved pastures. An ERP permit is required for the construction of the berm system, since the area needed for the construction of the berms is greater than the one acre in size, and since the berms have the capability of impounding more than 40 acre-feet of water. The berms are to be constructed by excavating the top nine inches of sandy, permeable topsoil and using that permeable soil to create the berms, which will be 1 to 2 feet in height. The water storage areas created by the excavation will have flat or horizontal bottoms, and will be very shallow with the capacity to retain approximately a foot of water. The berms will be planted with pasture grasses after construction to provide vegetative cover. The retention berm system is proposed to be built in segments, with the segment designed to capture runoff from a particular center pivot pasture to be constructed prior to the commencement of irrigation from that center pivot. A continuous clay layer underlies the areas in which the berms are to be constructed. The clay layer varies from 18 to 36 inches below the ground surface, with at least one location being as much as five feet below the ground surface. As such, after nine inches of soil is scraped away to create the water retention area and construct the berm, there will remain a layer of permeable sandy material above the clay. The berms are to be constructed at least 25 feet landward of any jurisdictional wetland, creating a “safe upland line.” Thus, the construction, operation, and maintenance of the retention berms and redistribution swales will result in no direct impacts to jurisdictional wetlands or other surface waters. There will be no agricultural activities, e.g., tilling, planting, or mowing, within the 25-foot buffers, and the buffers will be allowed to establish with native vegetation to provide additional protection for downgradient wetlands. As stormwater runoff flows from the irrigated pastures, it may, in places, create concentrated flow ways. Redistribution swales will be built in those areas to spread any remaining overland flow of water and reestablish sheet flow to the retention berm system. At any point at which water may overtop a berm, the berm will be hardened with rip—rap to insure its integrity. The berms are designed to intercept and collect overland flow from the pastures and temporarily store it behind the berms, regaining the soil storage volume lost through irrigation. A portion of the runoff intercepted by the berm system will evaporate. The majority will infiltrate either through the berm, or vertically into the subsurface soils beneath it. When the surficial soils become saturated, further vertical movement will be stopped by the impermeable clay layer underlying the site. The runoff water will then move horizontally until it reemerges into downstream wetland systems. Thus, the berm system is not expected to have a measurable impact on the hydroperiod of the wetlands on the North Tract. Phosphorus Removal Phosphorus tends to get “tied up” in soil as it moves through it. Phosphorus reduction occurs easily in permeable soil systems because it is removed from the water through a chemical absorption process that is not dependent on the environment of the soil. As the soils in the retention areas and berms go through drying cycles, the absorption capacity is regenerated. Thus, the retention system will effectively account for any increase in phosphorus resulting from the increased cattle density allowed by the irrigation such that there is expected to be no increase in phosphorus levels beyond the berm. Nitrogen Removal When manure is deposited on the ground, primarily as high pH urine, the urea is quickly converted to ammonia, which experiences a loss of 40 to 50 percent of the nitrogen to volatization. Soil conditions during dry weather conditions are generally aerobic. Remaining ammonia in the manure is converted by aerobic bacteria in the soil to nitrates and nitrites. Converted nitrates and nitrites from manure, along with nitrogen from fertilizer, is readily available for uptake as food by plants, including grasses and forage crops. Nitrates and nitrites are mobile in water. Therefore, during rain events of sufficient intensity to create runoff, the nitrogen can be transported downstream towards wetlands and other receiving waters, or percolate downward through the soil until blocked by an impervious barrier. During storm events, the soils above the clay confining layer and the lower parts of the pervious berms become saturated. Those saturated soils are drained of oxygen and become anaerobic. When nitrates and nitrites encounter saturated conditions, they provide food for anaerobic bacteria that exist in those conditions. The bacteria convert nitrates and nitrites to elemental nitrogen, which has no adverse impact on surface waters or groundwater. That process, known as denitrification, is enhanced in the presence of organic material. The soils from which the berms are constructed have a considerable organic component. In addition to the denitrification that occurs in the saturated conditions in and underlying the berms, remaining nitrogen compounds that reemerge into the downstream wetlands are likely to encounter organic wetland-type soil conditions. Organic wetland soils are anaerobic in nature, and will result in further, almost immediate denitrification of the nitrates and nitrites in the emerging water. Calculation of Volume - BMPTRAINS Model The calculation of the volume necessary to capture and store excess runoff from the irrigated pastures was performed by Dr. Wanielista using the BMPTRAINS model. BMPTRAINS is a simple, easy to use spreadsheet model. Its ease of use does not suggest that it is less than reliable. The model has been used as a method of calculating storage volumes in many conditions over a period of more than 40 years. The model was used to calculate the storage volumes necessary to provide storage and treatment of runoff from fifteen “basins” that had a control or a Best Management Practice associated with them. All of the basins were calculated as being underlain by soils in poorly-drained hydrologic soil Group D, except for the basin in the vicinity of Pivot 6, which is underlain by the more well-drained soil Group A. The model assumed about percent of the property to have soil Group A soils, an assumption that is supported by the evidence. Soil moisture conditions on the property were calculated by application of data regarding rainfall events and times, the irrigation schedule, and the amount of irrigation water projected for use over a year. The soil moisture condition was used to determine the amount of water that could be stored in the on-site soils, known as the storage coefficient. Once the storage coefficient was determined, that data was used to calculate the amount of water that would be expected to run off of the North Tract, known as the curve number. The curve number is adjusted by the extent to which the storage within a soil column is filled by the application of irrigation water, making it unable to store additional rainfall. As soil storage goes down, the curve number goes up. Thus, a curve number that approaches 100 means that more water is predicted to run off. Conversely, a lower curve number means that less water is predicted to run off. The pre-development curve number for the North Tract was based on the property being an unirrigated, poor grass area. A post-development curve number was assigned to the property that reflected a wet condition representative of the irrigated soils beneath the pivots. In calculating the storage volume necessary to handle runoff from the basins, the wet condition curve number was adjusted based on the fact that there is a mixture of irrigated and unirrigated general pasture within each basin to be served by a segment of the retention berm system, and by the estimated 15 percent of the time that the irrigation areas would be in a drier condition. In addition, the number was adjusted to reflect the 8 to 10 inches of additional evapotranspiration that occurs as a result of irrigation. The BMPTRAINS model was based on average annual nutrient-loading conditions, with water quality data collected at a suitable point within Reach 22, the receiving waterbody. The effects of nutrients from the irrigated pastures on receiving waterbodies is, in terms of the model, best represented by average annual conditions, rather than a single highest-observed nutrient value. Pre-development loading figures were based on the existing use of the property as unirrigated general pasture. The pre-development phosphorus loading figure was calculated at an average event mean concentration (EMC) of 0.421 milligrams per liter (mg/l). The post—condition phosphorus loading figure was calculated at an EMC of 0.621 mg/l. Therefore, in order to achieve pre-development levels of phosphorus, treatment to achieve a reduction in phosphorus of approximately 36 percent was determined to be necessary. The pre-development nitrogen loading figure was calculated at an EMC of 2.6 mg/l. The post—condition nitrogen loading figure was calculated at an EMC of 3.3 mg/l. Therefore, in order to achieve pre-development levels of nitrogen, treatment to achieve a reduction in nitrogen of approximately 25 percent was determined to be necessary. The limiting value for the design of the retention berms is phosphorus. To achieve post-development concentrations that are equal to or less than pre-development concentrations, the treatment volume of the berm system must be sufficient to allow for the removal of 36 percent of the nutrients in water being retained and treated behind the berms, which represents the necessary percentage of phosphorus. In order to achieve the 36 percent reduction required for phosphorus, the retention berm system must be capable of retaining approximately 38 acre—feet of water from the 15 basins. In order to achieve that retention volume, a berm length of approximately 50,000 linear feet was determined to be necessary, with an average depth of retention behind the berms of one foot. The proposed length of the berms is sufficient to retain the requisite volume of water to achieve a reduction in phosphorus of 36 percent. Thus, the post-development/irrigation levels of phosphorus from runoff are expected to be no greater than pre-development/general pasture levels of phosphorus from runoff. By basing the berm length and volume on that necessary for the treatment of phosphorus, there will be storage volume that is greater than required for a 25 percent reduction in nitrogen. Thus, the post-development/irrigation levels of nitrogen from runoff are expected to be less than pre- development/general pasture levels of nitrogen from runoff. Mr. Drummond admitted that the design of the retention berms “shows there is some reduction, potentially, but it's not going to totally clean up the nutrients.” Such a total clean-up is not required. Rather, it is sufficient that there is nutrient removal to pre-development levels, so that there is no additional pollutant loading from the permitted activities. Reasonable assurance that such additional loading is not expected to occur was provided. Despite Mr. Drummond’s criticism of the BMPTRAINS model, he did not quantify nutrient loading on the North Tract, and was unable to determine whether post-development concentrations of nutrients would increase over pre-development levels. As such, there was insufficient evidence to counter the results of the BMPTRAINS modeling. Watershed Assessment Model In order to further assess potential water quantity and water quality impacts to surface water bodies, and to confirm stormwater retention area and volume necessary to meet pre-development conditions, Sleepy Creek utilized the Watershed Assessment Model (WAM). The WAM is a peer-reviewed model that is widely accepted by national, state, and local regulatory entities. The WAM was designed to simulate water balance and nutrient impacts of varying land uses. It was used in this case to simulate and provide a quantitative measure of the anticipated impacts of irrigation on receiving water bodies, including Mill Creek, Daisy Creek, the Ocklawaha River, and Silver Springs. Inputs to the model include land conditions, soil conditions, rain and climate conditions, and water conveyance systems found on the property. In order to calculate the extent to which nutrients applied to the land surface might affect receiving waters, a time series of surface water and groundwater flow is “routed” through the modeled watershed and to the various outlets from the system, all of which have assimilation algorithms that represent the types of nutrient uptakes expected to occur as water goes through the system. Simulations were performed on the North Tract in its condition prior to acquisition by Sleepy Creek, in its current “exempted improved pasture condition,” and in its proposed “post—development” pivot-irrigation condition. The simulations assessed impacts of the site conditions on surface waters at the point at which they leave the property and discharge to Mill Creek, and at the point where Mill Creek merges into the Ocklawaha River. The baseline condition for measuring changes in nutrient concentrations was determined to be that lawfully existing at the time the application was made. Had there been any suggestion of illegality or impropriety in Sleepy Creek’s actions in clearing the timber and creating improved pasture, a different baseline might be warranted. However, no such illegality or impropriety was shown, and the SJRWMD rules create no procedure for “looking back” to previous land uses and conditions that were legally changed. Thus, the “exempted improved pasture condition” nutrient levels are appropriate for comparison with irrigated pasture nutrient levels. The WAM simulations indicated that nitrogen resulting from the irrigation of the North Tract pastures would be reduced at the outflow to Mill Creek at the Reach 22 stream segment from improved pasture levels by 1.7 percent in pounds per year, and by 0.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 1.3 percent in pounds per year, and 0.5 percent in milligrams per liter of water. These levels are small, but nonetheless support a finding that the berm system is effective in reducing nitrogen from the North Tract. Furthermore, the WAM simulations showed levels of nitrogen from the irrigated pasture after the construction of the retention berms to be reduced from that present in the pre- development condition, a conclusion consistent with that derived from the BMPTRAINS model. The WAM simulations indicated that phosphorus from the irrigated North Tract pastures, measured at the outflow to Mill Creek at the Reach 22 stream segment, would be reduced from improved pasture levels by 3.7 percent in pounds per year, and by 2.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 2.5 percent in pounds per year, and 1.6 percent in milligrams per liter of water. Those levels are, again, small, but supportive of a finding of no impact from the permitted activities. The WAM simulations showed phosphorus in the Ocklawaha River at the Eureka Station after the construction of the retention berms to be slightly greater than those simulated for the pre-development condition (0.00008 mg/l) -- the only calculated increase. That level is beyond miniscule, with impacts properly characterized as “non- measurable” and “non-detectable.” In any event, total phosphorus remains well below Florida’s nutrient standards. The WAM simulations were conducted based on all of the 15 pivots operating simultaneously at full capacity. That amount is greater than what is allowed under the permit. Thus, according to Dr. Bottcher, the predicted loads are higher than those that would be generated by the permitted allocation, making his estimates “very conservative.” Dr. Bottcher’s testimony is credited. During the course of the final hearing, the accuracy of the model results was questioned based on inaccuracies in rainfall inputs due to the five-mile distance of the property from the nearest rain station. Dr. Bottcher admitted that given the dynamics of summer convection storms, confidence that the rain station rainfall measurements represent specific conditions on the North Tract is limited. However, it remains the best data available. Furthermore, Dr. Bottcher testified that even if specific data points simulated by the model differ from that recorded at the rain station, that same error carries through each of the various scenarios. Thus, for the comparative purpose of the model, the errors get “washed out.” Other testimony regarding purported inaccuracies in the WAM simulations and report were explained as being the result of errors in the parameters used to run alternative simulations or analyze Sleepy Creek’s simulations, including use of soil types that are not representative of the North Tract, and a misunderstanding of dry weight/wet weight loading rates. There was agreement among witnesses that the WAM is regarded, among individuals with expertise in modeling, as an effective tool, and was the appropriate model for use in the ERP application that is the subject of this proceeding. As a result, the undersigned accepts the WAM simulations as being representative of comparative nutrient impacts on receiving surface water bodies resulting from irrigation of the North Tract. The WAM confirmed that the proposed retention berm system will be sufficient to treat additional nutrients that may result from irrigation of the pastures, and supports a finding of reasonable assurance that water quality criteria will be met. With regard to the East Tract, the WAM simulations showed that there would be reductions in nitrogen and phosphorus loading to Daisy Creek from the conversion of the property to irrigated pasture. Those simulations were also conservative because they assumed the maximum number of cattle allowed by the nutrient balance, and did not assume the 30 percent reduction in the number of cattle under the NMP so as to allow existing elevated levels of phosphorus in the soil from the sod farm to be “mined” by vegetation. Pivot 6 The evidence in this case suggests that, unlike the majority of the North Tract, a small area on the western side of the North Tract drains to the west and north. Irrigation Pivot is within that area. Dr. Harper noted that there are some soils in hydrologic soil Group A in the vicinity of Pivot 6 that reflect soils with a deeper water table where rainfall would be expected to infiltrate into the ground. Dr. Kincaid’s particle track analysis suggested that recharge to the surficial aquifer ultimately discharges to Mill Creek, except for recharge at Pivot 11, which is accounted for by evapotranspiration, and recharge at Pivot 6. Dr. Kincaid concluded that approximately 1 percent of the recharge to the surficial aquifer beneath the North Tract found its way into the upper Floridan aquifer. Those particle tracks originated only on the far western side of the property, and implicated only Pivot 6, which is indicative of the flow divide in the Floridan aquifer. Of the 1 percent of particle tracks entering the Floridan aquifer, some ultimately discharged at the St. John’s River, the Ocklawaha River, or Mill Creek. Dr. Kincaid opined, however, that most ultimately found their way to Silver Springs. Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs. Dr. Bottcher generally agreed that some small percentage of the water from the North Tract may make it to the upper Floridan aquifer, but that amount will be very small. Furthermore, that water reaching the upper Floridan aquifer would have been subject to the protection and treatment afforded by the NMP and the ERP berms. The evidence regarding the somewhat less restrictive confinement of the aquifer around Pivot 6 is not sufficient to rebut the prima facie case that the CUP modification, coupled with the ERP, will meet the District’s permitting standards. Public Interest The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is “consistent with the public interest” is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production. Sleepy Creek could raise cattle on the property using the agriculturally-exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation. Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order: approving the issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Permit Application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report; and approving the issuance of Environmental Resource Permit No. IND-083-130588-4 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Joint Application for Individual and Conceptual Environmental Resource Permit and the Individual Environmental Resource Permit Technical Staff Report. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
