The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a permit to Out of Bounds, Inc. (Out of Bounds, or applicant), to construct, operate, and close a construction and demolition debris disposal facility (C&D facility) in Hernando County.
Findings Of Fact On September 8, 2008, Out of Bounds applied to DEP for a permit to construct, operate, and close an unlined C&D facility on 26 acres located at 29251 Wildlife Lane, Brooksville, Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999. The Out of Bounds application was for a new permit, not for the renewal of an existing permit. Robert McCune owns property adjacent to the proposed C&D facility. He and his wife reside on the property, keep horses in stables on the property, and use the property for horseback riding business, which includes hosting public horseback riding events. Hernando SSK was formed by David Belcher and one or more others to continue the business being operated by Paige Cool when she died during this proceeding. The business is conducted on ten acres of property Cool owned approximately one mile west of the proposed C&D facility. Belcher is one of two co-personal representatives of Cool’s estate. Belcher and his wife hold a mortgage on the property. When the estate is finalized, the Belchers plan to assign their mortgage to Hernando SSK. It is not clear who will own the property after the estate is finalized, or how Hernando SSK will be authorized to continue the business on the property. Western pleasure and trail-riding horses are boarded on the Cool property, which is known as At Home Acres. The business also has access to 20 adjoining acres to the east, which are used for grazing. Access to the horseback riding trails in the Withlacoochee State Forest is conveniently located just across Wildlife Lane from the property, to the north. A manager resides in a double-wide trailer on the property, and another trailer and a barn to the east of it are leased out. There is a potable water well on the property, which is the source of drinking water for the manager and lessees. Well Setback In the application process, Out of Bounds disclosed two potable water wells within 500 feet of the proposed landfill disposal area. The application provided that those wells would be converted to non-potable use. Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area. When the Knox well was brought to the attention of DEP, Out of Bounds admitted that the well was permitted for potable use but took the position that it was not for potable use because it was not in use, was not connected to a source of electricity, and appeared to be abandoned. Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline-powered generator so that it will be ready for use when needed. During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on property once owned by Larry Fannin and now owned by his daughter and son-in- law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well. In mid-2008, the McCunes began to reside on their property. At first, they resided in a mobile home. They ran pipes from the well to the mobile home to provide drinking water. Eventually, later in 2008, they began construction of a residence on the property and ran pipes from the well to the house to provide drinking water to the house. The well was being used for drinking water before the Out of Bounds application was complete. (They also use water from the well from time to time for irrigation purposes--i.e., when they host horseback-riding events on weekends, they truck water from the well to their horseback-riding arena to apply to the ground to control dust.) Groundwater flows from the disposal area of the proposed landfill to the west and southwest. The Knox and McCune wells are down-gradient of the groundwater flow from the proposed disposal area. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)-(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition. Liner and Leachate Collection Existing unlined C&D facilities in the Southwest District report various parameters that exceed groundwater quality standards and criteria. These include arsenic, benzene, iron, aluminum, nitrate, ammonia, vinyl chloride, methylene chloride, 3- and 4-methyl phenols, sulfate, and total dissolved solids (TDS). Arsenic and benzene are primary (health-based) groundwater quality standards. The others are secondary standards that relate to taste, odor, and aesthetics. The likely source of the reported arsenic violations in the Southwest District is wood treated with chromate copper arsenate (CCA). See Fla. Admin. Code R. 62-701.200(11). Out of Bounds proposes to not accept CCA-treated wood and to use a trained “spotter” to exclude CCA-treated wood from the landfill. This is an appropriate measure to prevent arsenic violations, and is now required for C&D facilities. See Fla. Admin. Code R. 62-701.730(7)(d), (8), and (20). It was not clear from the evidence whether the C&D facilities in the Southwest District with arsenic violations accepted CCA-treated wood. Even if they did, the operational plan proposed by Out of Bounds to exclude CCA-treated wood and to use a trained spotter is not a guarantee that no CCA-treated wood will enter the landfill. A C&D facility would not be expected to dispose of material that would result in benzene contamination. The reported benzene violations suggest that unauthorized material contaminated with benzene nonetheless makes its way into C&D facilities in the Southwest District. The evidence was not clear whether a trained spotter was used at those facilities. Whether or not a spotter was used at those facilities, having a trained spotter would not guarantee that no benzene-contaminated material will enter the landfill proposed by Out of Bounds. Out of Bounds suggested that ammonia violations result from C&D facilities accepting yard trash. However, there was no evidence of a connection between acceptance of yard trash and ammonia violations. The operational plan proposed by Out of Bounds to “cover as you go” is the accepted best practice to control hydrogen sulfide odor, which comes from wet drywall. Out of Bounds suggested that its cover plan would prevent any sulfate violations, but there was no evidence to prove it. There was no evidence as to whether the C&D facility proposed by Out of Bounds would be substantially different from the other existing C&D facilities in DEP’s Southwest District. Absent such evidence, Out of Bounds did not provide reasonable assurances that its proposed facility would not cause groundwater quality violations. The site for the C&D facility proposed by Out of Bounds is internally drained. There are no surface waters onsite or within a mile of the site. There was no evidence of a surficial aquifer above the Floridan aquifer. Rainfall entering the Out of Bounds property migrates downward into the Floridan aquifer. Once in the aquifer, there is a horizontal component of groundwater water flow in a generally southwest direction, towards the Knox and McCune wells. Contaminated leachate from the proposed C&D facility would migrate with the groundwater. Out of Bounds suggests that a thick clay layer under the site of its proposed facility would prevent the downward migration of groundwater into the Floridan aquifer. There are several reasons why the clay layer does not provide the reasonable assurance of a liner that contamination from the proposed landfill would not reach the Floridan aquifer. Clay is much more permeable than a geomembrane meeting DEP’s specifications for use as a liner. The clay on the proposed site is on the order of at least a thousand times more permeable. (Out of Bounds appeared to confuse the permeability of such a geomembrane with the allowable permeability of the geosynthetic clay layer or compacted clay layer underlying the geomembrane. Cf. Fla. Admin. Code R. 62-701.730(4)(f).) In the application process, Out of Bounds relied on the clay layer for purposes of sinkhole prevention and mitigation, not for reasonable assurance that no liner was needed. The limestone formation underlying the site is highly variable, with numerous pinnacles; for that reason, the thickness of the clay layer also is highly variable, making it difficult to excavate the proposed landfill with complete assurance that the clay layer would not be penetrated. To provide reasonable assurance for purposes of sinkhole prevention and mitigation, Out of Bounds proposed to leave or create a clay layer at least six feet thick underlying the bottom of the proposed landfill. Because the site is in an area of high recharge to the Floridan aquifer and drains entirely internally, the clay layer alone does not provide reasonable assurance that there will be no downward migration of contaminated groundwater to the Floridan aquifer. Reasonable assurance requires a liner and leachate collection system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP deny the application for a C&D facility made by Out of Bounds. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of December, 2011. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 233 Third Street North, Suite 101 St. Petersburg, Florida 33701-3818 Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100 St. Petersburg, Florida 33743-1100 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000
Findings Of Fact Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner. Respondent posted an Operational Bond (Exhibit 2) in the amount of $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK 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 19th day of February, 1987. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
The Issue The issues to be determined in this proceeding are: whether the challengers have standing; and (2) whether Proposed Rule 40E-8.221(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The District is a government entity existing and operating pursuant to chapter 373, Florida Statutes, as a multi- purpose water management district. The District has the power and duty to adopt MFLs consistent with the provisions of part I of chapter 373. Sanibel is a barrier island sanctuary in Lee County and a duly-formed municipality with a population of more than 6,000. Sanibel is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. Sanibel is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. That is why tourists come from around the globe to visit Sanibel, and why Sanibel's residents move and remain there. Sanibel actively participated in the rulemaking process for the Proposed Rule from its inception. Sanibel submitted two technical comment letters to the District during the development of the Proposed Rule. Sanibel's natural resources director, James Evans, attended numerous public and technical meetings associated with the development of the Proposed Rule, speaking on the record at each of the public meetings prior to the adoption hearing by the District's governing board. The Town, located on Estero Island in Lee County, is also a barrier island community and duly-formed municipality with a population of more than 6,000. The Town is situated just south of the mouth of the Caloosahatchee River and on the southeastern edge of the Caloosahatchee River's greater estuarine area. The Town is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. Cape Coral is a duly-formed municipality in Lee County and is the largest city between Tampa and Miami, with a population in excess of 150,000. Cape Coral is bordered on the south by the Caloosahatchee River and has over 400 miles of navigable canals and waterways, all of which are within the Caloosahatchee River's greater estuarine area. In addition, Cape Coral has an assigned load reduction allocation under the Basin Management Action Plan (BMAP) for the Caloosahatchee River Estuary (CRE) due to it being designated as impaired for dissolved oxygen and nutrients. Maintaining sufficient flow in the Caloosahatchee River would have a direct impact on Cape Coral's ability to meet its assigned load reduction allocation. In addition to living on or near the water, a substantial number of the residents of Sanibel, Cape Coral, and the Town engage in water-based recreational activities such as swimming, fishing, boating, kayaking, paddle boarding, bird watching, and nature observation in and around the Caloosahatchee River's greater estuarine area. Fort Myers is a duly-formed municipality in Lee County and has a population of approximately 80,000. Fort Myers is bordered by the CRE throughout its entire jurisdictional boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers Yacht Basin), which includes a mooring field and an anchorage field in the Caloosahatchee River. Fort Myers presented testimony that commercial crabbing and recreational fishing have declined and that it has suffered economic harm due to water quality issues. Fort Myers owns the submerged land in the Caloosahatchee River from Marker 39 to Marker 58, and islands in the river. One such island will be used as a park for recreational activities such as canoeing, kayaking, and hiking for visitors to enjoy the Caloosahatchee River. Fort Myers also owns and operates piers and a public boat ramp within the Caloosahatchee River. Fort Myers' dock master has observed declines in seagrasses in the Caloosahatchee River during his 19-year career working at the Ft. Myers Yacht Basin. Fort Myers has adopted a Harbor Management Plan for the management of its mooring and anchorage fields in the Caloosahatchee River. Fort Myers has also been assigned a load reduction allocation under the BMAP for the CRE, and is responsible for a certain amount of pollution reduction over time. Bonita Springs is a municipality of more than 50,000 in Lee County. The borders of Bonita Springs include portions of Estero Bay, which, along with San Carlos Bay and the Caloosahatchee River, is part of the greater Lower Charlotte Harbor Estuary. Bonita Springs includes wildlife refuges, such as the Estero Bay Aquatic Preserve and Lovers Key State Park and Recreation Area. While Bonita Springs' strategic priorities include environmental protection and water quality, it does not have environmental staff or test water quality. Bonita Springs participates in Estero Bay Management and the Charlotte Harbor National Estuary Program (CHNEP). Bonita Springs provides financial assistance to the Caloosahatchee Citizen Sea Grass Gardening Project. Concerns regarding harm to the CRE and tape grasses are shared by a significant number of residents in Bonita Springs and Estero, including injury to the quality of life and recreational uses such as swimming, boating, and kayaking in the waterways. Estero is a municipality of more than 30,000 in Lee County. Estero borders the eastern portion of Estero Bay. Estero includes wildlife refuges, such as Estero Bay Aquatic Preserve and Koreshan State Park. While Estero has environmental policies, it does not have environmental staff or test water quality. Estero makes financial contributions to CHNEP. Estero is concerned that the Proposed Rule will affect its water quality, which could affect its residents' quality of life. Estero believes it could be harmed by poor water quality because its residents are portable retirees who can move away, or tourists who can choose not to visit. Captiva Island is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. CCP is a Florida not-for-profit corporation representing property owners, businesses, and the community of Captiva Island. Captiva Island is part of unincorporated Lee County and is located north of Sanibel. CCP has 200 financial contributors comprised of property owners, businesses, and residents on Captiva Island. CCP's mission includes protection of clean off-shore water, diverse and healthy marine life, and robust native vegetation along with the protection of mangrove fringe and water quality. CCP works with Lee County on provisions of the County's comprehensive plan, which include the quality of adjacent waters. CCP relied on the expertise of James Evans, the director of natural resources for Sanibel, and on the Sanibel- Captiva Conservation Foundation (SCCF). CCP was advised that the Proposed Rule was not sufficient to protect the environment and Vallisneria americana (Vallisneria) or tape grass during the dry season. Caloosahatchee River and Estuary The watershed of the Caloosahatchee River covers approximately 861,058 acres. The watershed consists of four sub-watersheds, three of which are upstream of the S-79 structure. The Tidal Caloosahatchee Basin sub-watershed (estuarine system) is downstream of the S-79 structure. The S-79 structure captures all the upstream discharges of fresh water that go into the estuarine system through the S-79 structure. Major tidal tributaries of the Tidal Caloosahatchee Basin are the Orange River and Telegraph Creek, which drain into the upper estuary downstream of the S-79 structure. Fresh water inflows from these and other tributaries also contribute fresh water into the estuarine system. The Caloosahatchee River was originally a natural watercourse running from its origin at Lake Flirt to San Carlos Bay. It is currently defined as the "surface waters that flow through the S-79 structure, combined with tributary contributions below S-79 that collectively flow southwest to San Carlos Bay." Fla. Admin. Code. R. 40E-8.021(2). Man-made alterations to the Caloosahatchee River began as early as 1884, but major alterations began in the 1930s with the authorization and construction of the C-43 Canal. The C-43 Canal runs 41.6 miles from Lake Okeechobee at Moore Haven, i.e., from the S-77 structure, to Olga, i.e., the S-79 structure. The C-43 Canal serves as a conveyance feature to drain water from the three sub-watersheds located upstream of the S-79 structure and convey regulatory discharges of water from Lake Okeechobee. In 1957, the United States Army Corps of Engineers (USACOE) prepared a report focused on drainage, flood control, and navigation needs of the Caloosahatchee River Basin, and one recommendation was construction of the S-79 structure. The key objectives of the S-79 structure were to eliminate undesirable salinity in the lower Caloosahatchee River, prevent the rapid depletion of water supplies, and raise the prevailing dry weather water table levels. The S-79 structure was constructed in 1965. It is a lock and dam structure that is also known as the Franklin Lock and Dam. The S-79 structure captures all upstream fresh water discharges that go into the CRE. The S-79 structure demarcates the head of the CRE, which extends 26 miles downstream to Shell Point, where it empties into San Carlos Bay in the southern portion of the greater Lower Charlotte Harbor Estuary. Most of this surface water flow takes a southerly route, flowing to the Gulf of Mexico under the Sanibel Causeway that crosses San Carlos Bay. When fresh water inflows are high, tidal action pushes some of this water back up into Matlacha Pass and Pine Island Sound. Additionally, some water exits to the south and flows into Estero Bay through Matanzas Pass. Salinity exhibits a strong gradient in the CRE. Changes in the watershed upstream of the S-79 structure have profoundly influenced the delivery of fresh water to the CRE. Runoff is now more variable with higher wet season flows and lower dry season discharges. Large volumes of fresh water during the wet season can flush salt water from the tidally-influenced sections of the water body, resulting in low salinity conditions throughout most of the CRE. In contrast, fresh water inflow at the S-79 structure can stop entirely during the dry season, especially during significant drought events. This results in saline intrusion that can extend upstream to the S-79 structure. Fluctuations of this magnitude at the head and mouth of the system cause mortality of organisms at both ends of the salinity gradient. Downstream of the S-79 structure, the CRE was significantly altered by multiple dredging activities, including the removal of extensive shoals and oyster bars. Seven automobile bridges, a railroad trestle, and the Sanibel Causeway were built between the 1880s and 1960s. A large canal network was built along the northern shoreline of the CRE in Cape Coral. To provide navigational access from the canal network to deeper water, multiple access channels were dredged within the CRE. Alterations to the delivery of fresh water combined with structural changes to the tidally-influenced sections of the water body have had lasting ecological consequences. These include the loss of extensive shoals and oyster bars, loss of a flourishing bay scallop fishery, and significant decline in seagrass cover in deeper areas. MFLs An MFL is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. The District's rules define significant harm as the "temporary loss of water resource functions, which results from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm." Fla. Admin. Code R. 40E-8.021(31). The rule further specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. Id. MFLs are calculated using the best information available. The regulatory agency is required to consider changes and structural alterations to watersheds, and the constraints such changes or alterations placed on the hydrology of an affected watershed. Certain waterbodies may not serve their historical hydrologic functions and recovery of these waterbodies to historical hydrologic conditions may not be economically or technically feasible. Accordingly, the regulatory agencies may determine that setting an MFL for such a water body based on its historical condition is not appropriate. Caloosahatchee MFL For the CRE, MFL criteria were designed to protect the estuary from significant harm due to insufficient fresh water inflows and were not guidelines for restoration of estuarine functions to conditions that existed in the past. The MFL criteria consider three aspects of the flow in terms of potential significant harm to the estuary: (1) the magnitude of the flow or the volume of fresh water entering the estuary; (2) the duration of time that flows can be below the recommended level before causing significant harm; and (3) the return frequency, or the number of times the MFL can be violated over a number of years before it results in significant harm, recognizing that natural climatic variability will be expected to cause fresh water inflows to fall below recommended levels at some natural frequency. The CRE MFL initially adopted in 2001 was primarily based on the salinity tolerance of one valued ecosystem component (VEC). The VEC was Vallisneria americana or tape grass, a fresh water aquatic plant that tolerates low levels of salinity. A major assumption of this approach was that flow and salinity conditions that protect Vallisneria would also protect other key organisms in the estuary. The 2001 CRE MFL was based on a regression model for estimating the relationship between surface salinity measured at the Ft. Myers monitoring station located in the Ft. Myers Yacht Basin and discharge at the S-79 structure. Although the District monitors surface and bottom salinity at multiple stations in the CRE, the Ft. Myers monitoring station is located centrally in the CRE and at the historical downstream extent of the Vallisneria habitat. The Ft. Myers monitoring station also has the most comprehensive period of record of monitoring data available. The fixed data sondes that monitor surface and bottom salinity are located at 20 percent and 80 percent of total river depth measured at mean low water. The data sondes continuously measure temperature and specific conductivity and, depending on the manufacturer, contains programs that calculate salinity. Those calculations are based on standards recognized and used worldwide by estuarine, marine, and oceanographic scientists.1/ The regression model only implicitly included inflows from the Tidal Caloosahatchee Basin sub-watershed downstream of the S-79 structure. To address this, during the 2003 re-evaluation, a linear reservoir model of Tidal Caloosahatchee Basin inflows was developed. The regression model results showed that a total inflow from S-79 plus the Tidal Caloosahatchee Basin of about 500 cubic feet per second (cfs) was required to produce a salinity of 10 at the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of 300 cfs measured at the S-79 structure would produce a salinity of 10 at the Ft. Myers monitoring station only with additional inflow from the downstream Tidal Caloosahatchee Basin sub- watershed. However, that additional inflow estimate was highly uncertain. The conclusion was that actual flow measurements over a period of time were needed in order to perform more robust calibrations for the new models that were being developed. The Re-evaluation The District's re-evaluation effort began in 2010 after the Conservancy of Southwest Florida filed a petition requesting review of the Caloosahatchee MFL. At the time, the governing board denied the petition but directed staff to undertake additional research and monitoring to ensure a future revision would be supported by the best information available. The first step was to review the September 2000 Final Peer Review Report (PRR) for the initial adoption. The 2000 PRR identified several items the District should consider, including a hydrodynamic salinity model, a numerical population model for Vallisneria, quantification of habitat value for Vallisneria, and documentation of the effects of minimum flows on downstream estuarine biota. The 2000 PRR documented concerns that the current MFL was based solely on the salinity tolerance of Vallisneria and recommended using multiple indicator species. To address those recommendations, the District conducted studies to evaluate multiple ecological indicators, such as zooplankton, aquatic vegetation, oysters, benthic communities, and blue crabs, in the Caloosahatchee from the S-79 structure to beyond Shell Point. In addition, the District collected flow data from the Tidal Caloosahatchee Basin sub-watershed for at least five years to develop watershed, flow, and hydrodynamic models that could properly simulate inflows and salinity responses. When the initial research was complete in 2016, the District published the Draft Science Document containing 11 component studies. In September 2016, the District held a two- day Science Symposium to present the 11 component studies and gather public comment. In response to public comment, the District performed additional evaluations, modeling, and updated the component studies to produce a Draft Technical Document. A Peer Review Panel reviewed the Draft Technical Document, which included the Draft Science Document. The Peer Review Panel has over 150 years of combined relevant scientific experience. The Peer Review Panel toured the CRE by air and water. The District also held a Peer Review Session to engage the public and obtain feedback. The Peer Review Panel's 2017 report (PRP report) stated that the District had "crafted a well-executed and well- documented set of field and laboratory studies and modeling effort" to re-evaluate the CRE MFL. The PRP report supported the 11 component studies, the modeling, the evaluations, and the initial proposed rule language. The Final Technical Document published in January 2018 incorporated five different models and additional science, examining the entire watershed and the criteria itself. The Final Science Document was Appendix A to the Final Technical Document and contained the scientific research and analysis that was done for the 11 component studies, the modeling, and the additional scientific analyses performed in response to public and stakeholder input. The District initiated rule development in December 2017. Rule development workshops were held in February and June 2018 and a stakeholder technical meeting was held in May 2018. The District validated the comments after each workshop and meeting, and revised the proposed rule language. The District published its Notice of Proposed Rule on July 23, 2018.2/ At its September 13, 2018, meeting, the District's governing board held a public hearing on the Proposed Rule. The mayors of Sanibel, Cape Coral, and the Town publicly commented at the hearing. After considering public comments, the governing board adopted the Proposed Rule. The District documented and responded to each public comment, memorializing the information in the Final Technical Document. Later, after the rule workshops and May 2018 technical meeting, the District prepared and presented all of the updated information, including public comment, at the September 2018 adoption hearing. Thus, the District's re-evaluation process was open and transparent. The Re-evaluated Caloosahatchee MFL The science supporting the re-evaluation involved a comprehensive assessment of the effects of diminished dry season fresh water inflows on the CRE. The dry season was chosen for two reasons. First, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats. Second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The 11 component studies targeted specific concerns regarding physical and ecological characteristics. Together they offered a holistic understanding of the negative effects of diminished fresh water inflow on estuarine ecology. The re-evaluated MFL criteria were developed using a resource-based approach. The approach combined the VEC approach and the habitat overlap concept. The habitat overlap approach is based on the idea that estuaries serve a nursery function and salinity determines the distribution of species within an estuary, including distribution during different life stages. The combined approach studied the minimum flow requirements of the various indicator species in terms of magnitude, duration, and return frequency, resulting in the following three aspects of the flow: (1) for magnitude, a 30-day moving average flow of 400 cfs measured at the S-79 structure; for duration, an MFL exceedance occurs during a 365-day period when the 30-day moving average flow at S-79 is below 400 cfs and the 30-day moving average salinity exceeds 10 at the Ft. Myers salinity monitoring station; and (3) for return frequency, an MFL violation occurs when an exceedance occurs more than once in a five-year period. The magnitude component is based on the salinity requirements of Vallisneria, along with results from the 11 studies modeling salinity and considering the salinity requirements of the other VECs. The duration component is based mainly on the estimates of rate of loss of Vallisneria shoots when salinity rises above 10 and the recovery rate of the shoots when salinities fall back below 10. Return frequency was determined based on long-term rainfall records rather than flow measurements from the S-79 structure, which the PRP report felt was well justified. In addition to the component studies, the re-evaluated MFL criteria and existing recovery strategy were evaluated using a suite of hydrologic and ecological models simulating long-term fresh water inflow to the CRE associated with varying management options, the resulting salinity in the CRE, and the ecological response of indicator species that are sensitive to low fresh water inflows. Five models were utilized. Three models simulated fresh water inflows to the CRE: two for S-79 flows; and one for Tidal Caloosahatchee Basin sub-watershed flows. The other two models were a three-dimensional hydrodynamic salinity model and a Vallisneria model. Tidal Caloosahatchee Basin sub-watershed has a number of tributaries that drain fresh water into the CRE. The flow at several of the tributaries was monitored for a five-year period. The measured flow was used to calibrate a watershed model and conduct a long-term simulation. The results showed an average fresh water inflow for all seasons of approximately 430 cfs. The average fresh water inflow during the dry season was 245 cfs while the wet season average fresh water inflow was 613 cfs. Fresh water inflow from the Tidal Caloosahatchee Basin sub- watershed was approximately 20 percent of total fresh water inflow to the CRE while 80 percent was released through the S-79 structure. Petitioners' and Intervenors' Objections 400 cfs Is Too Low Sanibel relied on a memorandum prepared by Dr. David Tomasko (Tomasko report) concerning his company's review of the January 2018 Final Technical Document supporting the Proposed Rule. The Tomasko report, dated October 23, 2018, was in the form of a "technical memorandum" outlining "preliminary findings." The Tomasko report was admitted as a joint exhibit; however, Dr. Tomasko did not testify at the final hearing. The Tomasko report is hearsay that was not used to supplement or explain competent direct evidence. Although hearsay is admissible in this proceeding, it cannot be the sole basis for a finding of fact.3/ See § 120.57(1)(c), Fla. Stat. The District's expert witnesses, who testified at the final hearing, explained that ten of the 11 component studies identified average indicator flows at S-79 ranging from 237 to 545 cfs with standard deviations ranging from plus or minus 57 to plus or minus 774 cfs.4/ The District's experts performed three different evaluations of those flow results. They identified the mean of all the means, calculated the median of the means, and performed a probability density function. The flow results for each of the three evaluations were 381 cfs, 400 cfs, and 365 cfs, with standard deviations that ranged from plus or minus 277 cfs to plus or minus 706 cfs. The District's experts testified that the three flow results are indistinguishable from a statistical point of view. The District chose 400 cfs because it was the highest flow result, and, therefore, the most protective of the three. The Petitioners and Intervenors failed to present evidence that showed any deficiencies in the District's component studies, hydrologic, hydrodynamic, or statistical modeling, or analysis of compliance data. The preponderance of the evidence established that the District used the best available science to calculate the MFL criteria. The District did not act arbitrarily or capriciously when it chose 400 cfs as the magnitude component of the MFL criteria. Inclusion of Salinity in the MFL Criteria The preponderance of the evidence also established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. It supports essential ecological goods and services, is sensitive to salinity fluctuations at the ecosystem scale, and has value to a variety of stakeholders. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. A combination of field monitoring, mesocosm studies, and modeling results allowed the application of Vallisneria responses as a platform to quantify the effects of high salinity duration in the upper CRE. Component Study Eight reviewed the development and initial application of a simulation model for Vallisneria in the CRE. The Vallisneria model was used to evaluate the salinity conditions that led to net annual mortality, or, in other words, the duration of high salinity exposure that led to decreased Vallisneria shoots versus the duration of low salinity conditions required for recovery. Component Study Seven included an analysis of the relationship between the number of consecutive days where salinity at the Ft. Myers monitoring station was greater than 10 and the percentage of initial Vallisneria shoots remaining at the end of each high salinity period. To further evaluate the duration element associated with the MFL criteria, the field monitoring data contained in Component Study Seven was evaluated with the mesocosm and modeling results. All three sources were analyzed similarly to derive a combined curve showing high salinity exposure duration that is significantly harmful to Vallisneria. The model also provided information that was used to quantify the duration of low salinity conditions required for Vallisneria to recover a relative fraction of shoots after high salinity exposure. Merging the exposure and recovery evaluations facilitated a determination of the unfavorable salinity duration that could significantly harm Vallisneria habitat. With significant harm defined as the environmental harm from which two years are required to recover, the determination was that Vallisneria should experience no more than 55 consecutive days of salinity greater than 10. However, stakeholders expressed concerns regarding the percentage loss of Vallisneria habitat after 55 days of high salinity exposure. In response, the District conducted further analysis of modeling results and revised the duration component to accept the stakeholder recommendation, now expressed in the Proposed Rule, of a 30-day moving average salinity greater than 10. The Petitioners and Intervenors argued that by expressing the MFL as a "flow plus salinity component" the Proposed Rule enlarges, modifies, or contravenes the specific provisions of law implemented. However, the duration component is part of compliance and represents the duration of time that flows can be below the recommended level before causing significant harm to the indicator species Vallisneria. The MFL in the Proposed Rule is a 30-day moving average flow of 400 cfs measured at the S-79 structure. Flow is both measured and operationally controlled at the S-79 structure. However, as previously found, there are other sources of fresh water entering the CRE downstream of the S-79 structure. The District does not control and cannot control these downstream sources, which modeling reveals contribute approximately 20 percent of total fresh water inflow to the CRE. By including salinity, the District can account for fresh water inflows coming from the tidal basin when there are low or no flows at S-79 since the significant harm threshold in the CRE is directly related to salinity tolerance of the indicator species Vallisneria. The District's experts also testified that salinity can be used as a flow component because it is not affected by chemical or biological processes and is an indicator of how much fresh water is entering the system.5/ Salinity is included in the duration component of the MFL criteria and is an exceedance criterion because the science established that the salinity gradient is crucial to the overall health of the CRE. Including salinity in the duration component of the MFL criteria achieves the purpose of the statutory mandate to set MFLs that are designed to avoid significant harm to the water resources and ecology of the area. No Unit of Measurement for Salinity The Petitioners and Intervenors argued that the Proposed Rule is vague because the language does not contain any units for salinity. The UNESCO calculation is the standard equation used by the estuarine and marine science community to convert specific conductivity and temperature data to salinity. The District's experts testified that the UNESCO calculation reports salinity as a ratio, which is a dimensionless number and has no units. The District uses the UNESCO calculation and performs the conversion in a spreadsheet that it maintains. In some instances, certain brands of data sondes are programmed to perform the calculation and provide the salinity number. The preponderance of the evidence established that use of the practical salinity unit (PSU) is not technically correct. PSU is a misnomer, a pseudo-unit equivalent to a unitless salinity number. The Petitioners' and Intervenors' expert witness, Dr. Anthony Janicki, conceded there is no difference between reporting salinity as unitless or as PSU. And although technically incorrect, he suggested that placing the word "practical" or putting "PSU" in the Proposed Rule would reduce confusion and vagueness. However, since the preponderance of the evidence established that use of PSU is not technically correct, the use of a pseudo-unit would actually cause confusion instead of reduce confusion. The Petitioners and Intervenors also argued that the Proposed Rule is vague because the language does not state that the method of measuring salinity is specific conductivity, or that the equation used to convert specific conductivity and temperature data to salinity is the standard developed by UNESCO. The Petitioners and Intervenors essentially argued that members of the public and those who may be regulated by the Proposed Rule are left to guess about the method or methods used to measure salinity. Because the Proposed Rule identifies and locates by latitude and longitude coordinates the Ft. Myers salinity monitoring station as the location where salinity would be measured for compliance, the Proposed Rule language is not vague. The Proposed Rule is not vague because it does not describe the data sondes, what parameters are measured by the data sondes, and how those parameters are converted to a salinity number. Salinity Monitoring Location and Mean Low Water The Petitioners and Intervenors argued that the Proposed Rule is vague for failing to define the phrase "20% of the total river depth at mean low water," and is arbitrary or capricious for failing to include more than one salinity monitoring station. Total river depth or the water column depth is a standardized measurement that is made from the surface down to the bottom of the river bed. Mean low water is commonly understood in the oceanographic and coastal sciences community as the average of all low tides over the time period defined as the national tidal datum epic. The District's expert witness, Dr. Cassondra Armstrong, testified that mean low water can be determined by using two documents prepared by the National Oceanographic and Atmospheric Administration (NOAA), i.e., the NOAA tide charts and glossary. The District's expert witnesses testified that "20% of the total river depth at mean low water" is the location of the data sonde at the Ft. Myers monitoring station that measures surface salinity. This is also the depth at which Vallisneria is located in the CRE. Since, the Proposed Rule language simply identifies the location of the existing data sonde at the Ft. Myers salinity monitoring station, the language is not vague. The preponderance of the evidence established that the Ft. Myers salinity monitoring station has two salinity data sondes, the one at 20 percent of the total river depth and the other at 80 percent. The data sonde at 20 percent of the total river depth was identified in the Proposed Rule for the following reasons. First, this is the depth where Vallisneria grows and is representative of the salinity exposure for Vallisneria. Second, it guarantees the data sonde is always submerged and able to record data. Third, it has the most comprehensive period of record of monitoring data available. As previously found, Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. Because the preponderance of the evidence established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE, the choice of the Ft. Myers monitoring station is not arbitrary or capricious. Water Resource Functions vs. Environmental Values The District's MFL rule specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. See Fla. Admin. Code R. 40E-8.021(31). The Final Technical Document identified the relevant water resource functions of the CRE as fish and wildlife habitats, estuarine resources, water supply, recreation, navigation, and flood control. The Petitioners and Intervenors argued that the environmental values listed in Florida Administrative Code Chapter 62-40, also known as the Water Resource Implementation Rule, were not adequately addressed in the Final Technical Document. A proposed rule challenge is not the proper forum to determine whether a proposed rule is consistent with the Water Resource Implementation Rule. Such a determination is within the exclusive jurisdiction of the Department of Environmental Protection under section 373.114(2), Florida Statutes. Consistency of the District's Proposed Rule with the Water Resource Implementation Rule of the Department of Environmental Protection is not a basis in this proceeding for a finding that the Proposed Rule is an invalid exercise of delegated legislative authority. Other Issues The Petitioners and Intervenors raised other issues during the hearing, although not specifically argued in their proposed final order. Since those issues were identified as disputed issues in the Joint Pre-hearing Stipulation, they are addressed below. 1. Elimination of Single-day Exceedance Criterion During the rulemaking process, Sanibel and SCCF sent the District a letter requesting justification for eliminating the single-day exceedance salinity criterion in the current rule. The District staff evaluated the available Caloosahatchee River MFL compliance record, dating back to when the MFL was adopted in September 2001. The District maintains a historical record of MFL monitoring data and reviewed it to determine if the single-day exceedance salinity criterion was exceeded before the 30-day moving average criterion. The compliance record showed five exceedance events of the single-day salinity criterion have occurred. However, the compliance record also showed that the 30- day moving average salinity criterion had already been exceeded before the five events occurred. In other words, the single-day criterion was never exceeded before the 30-day moving average criterion. Based on this evaluation, the District eliminated the single-day exceedance salinity criterion because it did not provide any additional resource protection. The District's decision was not arbitrary or capricious. 2. Not Using the Latest Model Evaluation of recommended MFL criteria and a recovery strategy for the CRE were greatly aided by integration of a suite of hydrologic and ecological models simulating (1) long-term fresh water inflow associated with varying management options, (2) the resulting salinity in the estuary, and (3) ecological response of indicator species that are sensitive to low fresh water inflows. Five models were specifically utilized, including three models for simulations of fresh water inflows to the CRE, a three-dimensional hydrodynamic salinity model, and a Vallisneria model. The three models simulating fresh water inflows included (1) the South Florida Water Management Model (SFWMM) to simulate fresh water discharges at S-79, which includes regional operations of Lake Okeechobee and incorporates Caloosahatchee River irrigation demands; (2) the C-43 Reservoir Model, which uses the SFWMM-simulated daily S-79 flow as input and simulates the management benefit of the C-43 Reservoir; and (3) the Watershed (WaSh) Model to simulate tidal tributary inflow from the Tidal Caloosahatchee Basin sub-watershed. The Caloosahatchee Hydrodynamic/Salinity Model was based on the Curvilinear Hydrodynamic Three-dimensional Model (CH3D) modeling framework with the functionality of simulating the spatial salinity structure across the entire estuary. The Vallisneria Model took the CH3D modeled salinity as input to simulate Vallisneria growth at critical locations in the estuary. The District did review the more recent Environmental Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee Total Maximum Daily Load (TMDL) and being used by the Department of Environmental Protection. The District's expert witness, Dr. Detong Sun, testified that until 2014, the hydrodynamic part of the EFDC model was not working well. He testified that in 2016, the District still had concerns and suggested the use of the District's continuous monitoring data from seven locations across the CRE rather than grab samples for model calibration. Dr. Sun's opinion was that the EFDC model has improved in recent years, but was still behind the CH3D model in terms of performance. The District's expert witness, Dr. Amanda Kahn, testified that the water quality component of the EFDC model was not appropriate for this re-evaluation because the MFL is about water quantity, not water quality. The water quality component of the EFDC model addresses nutrient loadings, not minimum flows. Dr. Kahn also testified that in setting MFL criteria for the CRE, salinity was not a water quality component. Salinity was used as a water quantity component because it does not change with biological processes and can be a measure of how much fresh water is coming into the system. Based on a preponderance of the evidence, the District's decision not to use the EFDC model was not arbitrary or capricious. 3. Seasonality The Petitioners and Intervenors argued that the District is required to set an MFL that varies by season. For the CRE, the District set MFL criteria that protect the system from low flow that would occur in either the wet or dry season. As previously found, the re-evaluation studies focused on the dry season for two reasons: first, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats; and second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The MFL statute states that "when appropriate, [MFLs] may be calculated to reflect seasonal variations." § 373.042(1)(b), Fla. Stat. The preponderance of the evidence showed that for the CRE, it was not necessary to set an MFL that varied by season. Improper Purpose The Petitioners, Sanibel, Cape Coral, and the Town, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Petitioners did not participate in this proceeding for an improper purpose. The Intervenors, Fort Myers, Estero, Bonita Springs, and CCP, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Intervenors did not participate in this proceeding for an improper purpose.
The Issue The issue for consideration in this matter is whether Respondent’s license as a water well contractor should be disciplined because of the matters alleged in the Administrative Complaint and Order entered herein by the District.
Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District (SWFWMD) was the state agency responsible for the conservation, protection, management, and control of water resources within its boundaries, and consistent therewith, the licensing of water wells therein; and for the licensing and regulation of water wells and water well contractors within the district. The three wells in issue herein were within the jurisdiction of the Petitioner, and Respondent was a water well contractor licensed by the District. On June 4, 1998, Respondent signed a contract with Karen Anne Grant, to drill a four-inch domestic water well on her property located at 33442 Larkin Road, Dade City, Florida. The property, on which Ms. Grant was building a residence, was a part of a pre-existing citrus grove. After application by the Respondent, SWFWMD issued WCP No. 606175.01 to him on June 1, 1998, and Respondent began construction of the well on June 15, 1998. His application reflected the well was to be drilled using the cable-tool method. Construction was completed on the well on or about July 7, 1998, but because the well was vandalized during construction by the dropping of an unknown substance (probably a piece of casing) down the well, the well was unsatisfactory and was not used. Respondent attempted to repair the well but was unable to do so. Respondent claimed the well was unusable and he would have to drill another one. Although he did not obtain a permit to close the well, he subsequently did so. He was paid $5,375.00 to dig this Well (No. 1). Because of the failure of Well No. 1, Respondent applied to the District for and received WCP No. 613349.01 on December 9, 1998, to construct a second four-inch water well on Ms. Grant's property. This was Well No. 2. He began construction that day and completed it on January 27, 1999. From the time of its initial use, Well No. 2 produced water which contained unacceptable amounts of sediment, debris, and sand. In addition to the unsatisfactory quality of the water it produced, Well No. 2 also failed to produce a sufficient quantity of water for domestic potable water use or grove irrigation. Respondent admitted to Ms. Grant that Well No. 2 was not satisfactory for grove irrigation, and in an effort to fix the water quality problem, installed a sand filter and sedimentation tank. Well No. 2 was not properly closed. It was covered with a PVC cap instead of a tamper-resistant watertight cap or valve as required, and Respondent did not properly seal the upper terminus of the well. Without obtaining a third WCP, on February 25, 1999, Respondent started construction of a third well on the Grant property. Respondent contends WCP No. 613349.01, pulled for Well No. 2, was not for that well but for Well No. 3. He argues that the second well was so close to the first well that he did not feel another permit was required. Though Well No. 3 was completed and produces water, the water quality is poor. It contains sand, sediment, debris, and rock, which results in clogging of plumbing fixtures at the Grant home. In addition, the volume of water produced is insufficient for comfortable home use. Well No. 3 is open down to 178 feet below land surface, beyond which point it is obstructed by sand. Use of a diagnostic tool available to the District reveals that the sand seems to be coming from around the well casing. Ms. Grant initially contracted with Respondent to dig her well in June 1998. Although Petitioner disputes it, the location of the well near the new house she was building was, she claims, by mutual agreement. Respondent did not express any dissatisfaction with the location of this or either of the other wells, He said he was familiar with the area and had worked all around there. Respondent started work on Well No. 1 on June 15, 1998 and it was completed on July 2, 1998. The house was not yet completed, and electric service had not been installed, though it was being arranged for. Before the well could be put in operation, however, Respondent claimed it was vandalized and his equipment, which he had left at the site, stolen. At this point, Respondent told Ms. Grant that he had run into an obstruction which he believed was pipe which had been dropped into the well at more than 100 feet. He said he had tried to get it out, but could not, and had to drill another well. The casing of Well No. 1 was not cut off at that time. Ms. Grant later discovered it had been cut off and plugged, but she does not know who did that. Ms. Grant used Well No. 2, which was located about 20 to 30 feet west of Well No. 1, for just about two months but was never satisfied with the amount or quality of the water it produced. Not only was the water quality low, but there was also insufficient volume for grove irrigation, one of the intended uses of which she had advised Respondent. When Grant complained to Respondent about the water quality, he suggested she run hoses constantly to clear the sand out. In February, 1999, just after Ms. Grant contacted the District to complain, Respondent said he would come by to cap Well Nos. 1 and 2, and start Well No. 3. On February 25, 1999, Respondent started Well No. 3 at a site about 200 feet north of Well Nos. 1 and 2, agreed upon by the parties after some discussion, and on March 5, 1999, he completed it. Respondent billed Ms. Grant $3,271 for this well, in addition to the $5,375 paid for Well No. 1 and the $4,585 paid for Well No. 2. Whereas the builder paid for the first two wells, Ms. Grant paid for Well No. 3, but she had the same problems with Well No. 3 that she had had with the prior two wells. An irrigation company called in to see what could be done to get water to the citrus grove indicated there was too much sediment in the water and not enough flow. About a year after Well No. 3 was completed, the Grants noticed the water pressure was dropping, and when they went to the well site, they noticed the pump was constantly running. As a result, they called another well driller who pulled the pump and replaced the impellers. After that, Ms. Grant contacted Respondent about the fact that the wells he had drilled had never worked properly. All he would recommend was to keep the hoses running. He indicated he would try to develop the well to rid it of debris but when he tried, he was unsuccessful. As a result of the situation with the three wells, the Grants had no water to their home; the pumps they installed were destroyed; they were unable to irrigate their 8-acre citrus grove; they suffered a resultant loss of income; and, they were forced to drill a fourth well. When Well No. 1 was closed, the casing was cut off at or below ground level. It did not extend one foot above the land surface, nor was the casing capped or sealed with a tamper- resistant watertight cap or valve. Examination of the well site by Sharon Lee Vance, then a technician IV for the District, on May 25, 1999, based on a complaint filed by Ms. Grant, revealed that the water quality was poor - cloudy with excessive sand and rock particles. Ms. Vance tried to contact Respondent, whose name appeared on the permit as contact, by phone but always got his voice mail. Though she left messages requesting him to call back, he never did. Ms. Vance went back to the Grant site in July 1999 in the company of other District personnel. At this visit, Ms. Vance learned there were two wells. She located both and found that Well No. 1 was buried. When she first saw that well, she noted that it had been cut off below the surface, a fence post had been driven into the top, and the well had been buried. In Ms. Vance's discussions with Ms. Grant about this well, Ms. Grant categorically denied she was the one who cut off the top of Well No. 1 or buried it. She does not have access to the cutting equipment used to cut off the top of the well. Such equipment, however, is commonly used by well contractors. It was obvious to Ms. Vance that Well No. 1 had several problems. It was clearly not suitable for its intended use because it was cut off below ground level and was obstructed. It had not been properly abandoned. Though she dug down approximately one-and-a-half feet all the way around the casing, she could find no evidence of bentonite or any other approved closing medium. Even though Respondent now claims the second permit he pulled was not for Well No. 2 but for Well No. 3 instead, the permit itself appears to authorize the construction of Well No. Ms. Vance found several problems with this well, also. It was not properly sealed with bentonite or any other properly approved closure medium; a PVC cap had been applied to the top instead of a waterproof or tamperproof cap, and the PVC cap was cracked; the well was not suitable for its intended purpose because it was obstructed and produced both insufficient and poor quality water; and it was not properly abandoned. Ms. Vance observed a metal plate placed around the well top. She does not know what purpose it was to serve, but based on her experience and her examination of the site, she believes it was placed there to keep the casing from falling into the well. Notwithstanding, Ms. Vance's opinion that the second permit was for Well No. 2, Respondent contends he believed the permit for Well No. 1 was adequate to permit drilling of Well No. 2 without a new permit. Though his belief is incorrect, he admitted to obtaining a permit for Well No. 3. Therefore, it is found that Well No. 2 was not properly permitted. Well No. 3 was permitted. The water in Well No. 3 was not of good quality. She examined the sand filter which had been installed by the Respondent and found it to be full of sand. So was the settling tank. She also noted debris and unusual sediment around the well head. Based on water samples taken at the well, and the observations made, it was clear to Ms. Vance that the well was not properly seated and was pumping sand. Further, the well casing did not extend down to the static water level, and the well was not properly permitted. Ms. Vance further noted that the water from Well No. 3, in addition to the excessive sand, also had large pieces of rock and chunks of clay in it. This was unusual and indicated to her that there was a problem with the well's construction. The casing integrity as not good, which permitted an infusion of contaminant into the well. This condition is not unusual during the first day or so of a well's operation, but it usually clears up after that. In this case, it did not. Ms. Vance admits she does not know who cut Well No. 1 off below ground level. She knows the well was not properly abandoned as required by rule, however, because it was not properly grouted with neat cement grout or bentonite. She dug down beside the well for a total of two and a half feet without seeing any evidence of grout or bentonite. The fact that the well had pipe dropped into it, and the existence of the cutting off of the pipe below ground, made it inappropriate for the intended purpose of providing water for the home. Ms. Vance she does not know who cut off the pump; Ms. Grant does not know who cut off the pipe; and Respondent denies having done it. Though the work was clearly done by someone with access to well drilling tools, Respondent was not the only driller to work at the site. Therefore, it cannot be found that Respondent cut the pipe off below ground. It is clear, however, that Respondent failed to properly abandon and close Well No. 1, when he found it unusable, and it was his responsibility to do so. Well No. 2 also was not properly sealed by Respondent, according to Ms. Vance. A proper seal would include a good cap, not a cracked PVC cap, which would suffice only as a temporary cap. A proper cap would be one that is water tight and could not be readily removed. Ms. Vance admits she does not know who cracked the existing cap - only that it is cracked. This well, too, did not produce water fit for its intended purpose because of the existence of the tools which had been dropped into it. A permit was not obtained to abandon it. Under all these circumstances, Ms. Vance did not attempt to determine if it would produce sufficient water. Finally, Ms. Vance concluded that Well No. 3 was not properly seated. According to rule, the casing has to seat to or below the static water level. Based on the debris in the water drawn from this well, she was satisfied this well was not properly cased. Mack Pike, a water resources technician III for the District, does much of the well logging for the District. The equipment he uses goes to the bottom of the well and shows the diameter up to the point where the casing usually starts. Among other items, he uses a camera, which is what he used on the wells in issue here. On July 22, 1999, he went to the Grant property to look at Well Nos. 1 and 2. His first efforts to get into these wells were unsuccessful, so he stopped his effort and returned on May 10, 2000 with the camera. On May 17, 2000, he also ran the camera down all three wells. In Well No. 3 he found the pump at 176 feet. He found Well No. 1 cut off about one and a- half feet below ground level, with a log jammed into the casing top down to the level of the casing. The pipe had been cut with a torch, but the casing had not been properly sealed with bentonite. Use of the log to stuff the pipe was an improper seal. He found the well open below the log down to 128 feet, but obstructed below that. There was no water in the well. Respondent adamantly insists he used bentonite in all three wells, but since no trace of it was found in any of the wells by Mr. Pike or Ms. Vance, it is found that he did not. At Well No. 2, Mr. Pike found a welded slab around the pipe to keep the casing from falling in. The cap was cracked and was no good. The camera showed the well was closed off. He hit sand at 158 feet. The presence of sand indicated to Mr. Pike that the casing was not properly sealed. The well was unusable. Mr. Pike did not examine Well No. 3 until after he opened the sediment tank and found sand which appeared to have come from the surface. If the casing had been properly sealed, there should have been no surface sand. This means that the well was not properly seated. Respondent has been a licensed well contractor since 1989 and has drilled approximately 300 wells since that time. Though he claims he suggested alternate locations for the wells to Ms. Grant, she insisted the well be placed near her irrigation line. Respondent claims he was against this because the site was a transition area which raised the possibility of the pipe bending. Notwithstanding the advice he got from others regarding the siting of the wells, he agreed to place the well where Ms. Grant wanted it. Respondent claims he dug the first well and installed the pump, but the power was insufficient to run it. As a result, he pulled out the pump and told Ms. Grant that when she got the proper power to run it, he'd come back and reinstall the pump. It was when he returned to the site in response to her call that he found that the site of Well No. 1 had been vandalized. Though he recommended the well be abandoned, Ms. Grant did not want to do that, so he moved over 20 feet and started to drill again. He categorically denies having cut off the casing of Well No. 1 below ground level. It has been found that the evidence shows Respondent that cut the pipe on Well No. 1, is insufficient. Mr. Holt admits he did not seek a permit for this second well because his understanding was that one could drill like wells on the same premises without abandoning the pre- existing wells. He drilled the second well which, he claims, produced water for five to six months. However, it was impossible to stop the sand from infiltrating the well, and the well was not producing sufficient water to irrigate the grove. Because the water produced by Well No. 2 was insufficient in quantity to use the 5-horsepower pump called for in the contract, Respondent replaced it with a one and a-half horsepower pump. According to Respondent, he and Ms. Grant discussed where to site Well No. 3. Finally, Ms. Grant agreed to move it up the hill on which Respondent wanted to site it, as this would accommodate her irrigation system. Respondent was not comfortable with this because it was on the slope too close to the others, but he went along with it. As Well No. 3 was being constructed, Respondent discussed with Ms. Grant the need to close Well Nos. 1 and 2. She did not want to pay for the closings, so he decided to cap the existing wells. As a result, Well No. 2 is still a viable well, and though it will not irrigate the grove, it will, Respondent claims, provide sufficient water for the house. He admits placing the PVC cap on Well No. 2, but claims it was not cracked when installed. He also admits to placing the plate around the top of Well No. 2 because the drive shoe was bent. It broke off, and he was afraid if he did not reinforce the area as he had the casing would collapse when he tried to ream out the drive shoe to recover it. At the 126-foot mark of Well No. 3, Respondent hit a boulder through which the drill would not go. At that time, the hole below the casing was still good with no infusion. Respondent installed a pump and drew water, but, the pump soon began to pull sand. Respondent installed a filter, but it was insufficient. He ultimately drilled through the rock and placed the pump at 178 feet. That well is currently being used. Respondent claims that all wells in that area pull sand to some degree. He insists that Ms. Grant's wells just pull too much. He claims he could have quit, but because of his relationship with the builder, he felt obligated to drill a working well for Ms. Grant. Anthony Gilboy, who has been with the District for 20 years, is currently the District's manager of well construction. He is familiar with the statutes and the rules of the District relating to water well construction and abandonment. According to Mr. Gilboy, they are loose enough to permit some latitude in their application. There is a freedom to amend methodology where circumstances so dictate. A licensed water well contractor is required to obtain a permit to construct a water well. Once a permit is drawn, if the well needs to be changed, the permittee must apply for an amendment and then plug the old well consistent with District guidelines. Plugging is critical to prevent potential contamination of water and to preserve it. Rule 40D-3.042, Florida Administrative Code, permits multiple (up to 8) wells under a single permit for similar types of wells that have diameters of 4 inches or less, but not domestic water wells. There are different ways to drill a water well. One is by cable-tool drill in which a bit is hammered into the rock. As the casing is being driven down into the ground, it holds back the sediment. Another method involves the use of a rotary drill which employs water and bentonite to hold back sediment. It is possible to tell whether bentonite was used in the drilling process just by looking at the well. The bentonite adheres to the well casing and looks different from the surrounding soil. In fact, there is no soil appearing naturally in Florida that looks like bentonite. In the instant case, Respondent applied to use the cable-tool method. Bentonite traces were not found at the sites. When a well is drilled, the casing is to be poured in segments as drilling progresses. When a well is to be abandoned, one approved method of doing so involves the use of bentonite, a type of clay which swells to about 10 to 15 times its volume in dry form. Studies done by the District in conjunction with the University of Florida show that over all, bentonite is a better seal than natural soil, and it prevents surface water from settling down the side of the casing. Rule 40D-3.517(3), Florida Administrative Code, requires bentonite's use for this purpose, and a rule of the Department of Environmental Protection, though not specifically mentioning bentonite, requires that casings be sealed. The casing of a water well is used to seal off any unconsolidated materials. Rule 62-532, Florida Administrative Code, requires the casing be extended into the static water level at the time the well is drawn. If a well is not sealed, debris and sand can slide into the well and damage the pump and other equipment. If debris is seen, it usually means the casing was not sealed properly. After a well is completed, the rules of the District and the Department, Rules 40D-3.521(2) and 62-532.500(3)(a)4, Florida Administrative Code, respectively, require the upper part of the well to be sealed off to prevent infusion of contaminants. The seal must be tamper-proof and permanent. A fence post is not acceptable, nor is a cracked PVC cap. In addition, the upper terminus of a private well must extend at least 1 foot above the land surface. The purpose of this requirement is to allow the well to be found, and to prevent infusion of contaminant. (Rule 40D-3.53(2), Florida Administrative Code) According to Rule 62-532-500(4), Florida Administrative Code, all abandoned or incomplete wells must be plugged from top to bottom with grout (neat cement). The Rule and Stipulation 39 of the permit provide that the well drilling contractor is responsible for proper abandonment of a well. This is not conditioned on the willingness of the owner to pay. The contractor has the responsibility to do it. An abandoned well is one which the use of which has been permanently discontinued or which is so in need of repair as to be useless. These determinations must be made by the District, hence the need for the permit. In the instant case it was determined that Well Nos. 1 and 2 were not suited for their intended purpose, and they should have been properly abandoned. The process for well abandonment is not complex, but it does require the obtaining of a permit. At least 24 hours in advance of initiation of the plugging process, the contractor must advise the District that the process will be implemented. Thereafter, the well hole is filled with neat cement or bentonite grout. To abandon a well by any other method would require a variance from the District. Neither permit nor variance was sought as to Well Nos. 1 and 2. The standards adopted by the Department and the Water Management Districts are statewide in application. Construction of a water well without first obtaining a permit is classified as a major violation. The failure to properly abandon a well or the failure to use bentonite or neat cement in well closure are also major violations. Failure to construct a well so that the casing extends below the static water level is a major violation. Failure to seat or seal a casing into rock formation is a major violation. Failure to place a water-tight seal and failure to extend well casing at least one foot above the ground level are both major violations. Penalties may be assessed for these violations according to a schedule set out in the Department rules. However, these penalties may be adjusted based on such factors as the economic benefit to the contractor of his non-compliance; his history of non-compliance; the negligence or willfulness of his actions; and whether he acted in good faith. Under the circumstances of this case, Mr. Gilboy is of the opinion that the actions proposed by the District are appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Fletcher Holt be ordered to pay an administrative fine of $4,600; that 46 points be assessed against his water well contractor's license; and that he be required to properly abandon Well Nos. 1, 2, and 3, which he drilled on the Grant property. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 18th day of July, 2000. COPIES FURNISHED: Onofre Cintron, Esquire 305 North Parson Avenue Brandon, Florida 33510 Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether the St. Johns River Water Management District (District) should issue a consumptive use permit (CUP) in response to Application Number 99052 filed by the City of Titusville and, if so, what CUP terms are appropriate.
Findings Of Fact Area II and III Wellfields On February 10, 1998, the District issued CUP 10647 to the City of Titusville, authorizing the withdrawal of an annual average of 6.5 mgd from the City's Area II and Area III Wellfields, 5.4 from Area II and 1.1 from Area III. These wellfields are owned and operated by the City and are located within its municipal boundaries. They produce water from the SAS. The Area II Wellfield is located near I-95 in the northeastern portion of the City and consists of shallow wells primarily constructed between 1955 and 2002. It consists of 53 production wells, of which 31 are considered to be of primary use. The City replaced 16 Area II production wells in 1995 and 4 production wells in 2000 and is currently considering the replacement of 4 additional wells. The Area III Wellfield is located in the south-central portion of the City’s service area. It consists of 35 production wells, of which 18 are considered to be of primary use. Petitioners contend that both the "safe yield" (the quantity of water the City can withdraw without degrading the water resource) and the "reliable yield" (the quantity of water the City can dependably withdraw) of the Area II and III Wellfields are the permitted limits of 5.4 and 1.1 mgd, respectively. The City and the District contend that saline intrusion into the SAS has reduced the safe and reliable yields to significantly less than the permitted amounts at this time. Historically, the Area II Wellfield was the most productive wellfield. Prior to 1988, the City relied entirely on the Area II Wellfield and pumped almost 5 mgd from it at times. Since then, several Area II wells have shown signs of water quality degradation that has resulted in a reduction in pumping to better stabilize water quality levels. For the past five years, the City has only pumped approximately 3 mgd on an annual average basis from the Area II Wellfield. Chloride concentrations exceeding 250 mg/l have been recorded in 16 Area II production wells. Chloride concentrations exceeding 250 mg/l have been recorded in 22 Area III production wells. About 10 wells in the Area II and III Wellfields have been abandoned because of water quality degradation. At the Area II Wellfields there are 10 wells whose use is impaired because of water quality issues. At the Area III Wellfields there are 15 wells whose use is impaired because of water quality issues. Area III has had serious chloride problems, with concentrations at or near 200 mg/l for much of the mid-90's. In the Area III Wellfield, the Anastasia wells have the best water quality. However, these wells have also seen increasing concentrations of chlorides, with one well over 200 mg/l. According to information introduced into evidence by the City, it appears that Area III began to have chloride problems primarily due to over-pumping.5 The City pumped far in excess of permit limits from Area III during the early 1990's, including almost twice the permit limit in 1990 and 1.5 times the limit in 1991. While chlorides were between 77 and 92 mg/l in 1990-92, they began to rise in 1993 and were between 192 and 202 mg/l for the rest of the decade. Area III production declined in 1997 to approximately 0.66 mgd and declined further to a low of approximately 0.5 mgd in 1999. In 2000, chlorides fell to approximately 138 mg/l and then rose to approximately 150 mg/l in 2002-04, while production gradually rose to close to the permit limit in 2002 and 2003, before dipping to 0.75 mgd in 2004. In 2005, production was back up to 1 mgd, and chlorides were approximately 87 mg/l. During the five years from 2001 through 2005, the City has pumped an annual average rate of approximately 1 mgd from Area III. In contrast, Area II has not been over-pumped during the same time period. Area II production generally declined from a high of 4.146 mgd in 1992 to a low of 2.525 mgd in 2000, except for an increase of approximately 0.25 mgd between 1997 and 1998. During this time, chlorides generally declined from a high of 124 mg/l in 1993 to approximately 68 mg/l in 2000, with the exception of a rise to approximately 111 mg/l in 1999. Area II production then generally increased through 2003 to approximately 3.000 mgd, where it remained in 2004 before declining to approximately 2.770 mgd in 2005. Area II chlorides were approximately 113 mg/l in 2001, 109 in 2002, 86 in 2003, 76 in 2004, and 83 in 2005. During the five years from 2001 through 2005, the City has pumped only an annual average rate of 2.86 mgd. In 1995, the City entered into a contract with the City of Cocoa requiring the City to pay for at least 1 mgd each year, whether the City actually takes the water or not (the "take-or-pay" clause). Using the Cocoa water allowed the City to reduce production from Area III without a corresponding increase in production from Area II. Water conservation measures implemented since 1998, including conservation rates, have since reduced per capita water use. In 2002, the contractual take-or-pay requirement was reduced to 0.5 mgd. After 2002, purchases of Cocoa water have amounted to 0.576, 0.712, and 0.372 mgd on an annual average basis. As a result, since at least 1990 Area II has not been required to produce at its permitted limit. It is not clear exactly what the City believes to be safe and reliable yields at this time from Areas II and III. In its PRO, the City took the position that the total reliable yield is 3.5 to 4 mgd, of which 2.25 to 2.5 mgd is attributable to the Area II Wellfield and 0.75 mgd is attributable to the Area III Wellfield. However, its consultant, Mr. Patrick Barnes, testified that the City's current reliable yields are 3 mgd from Area II and 1 or 1.1 mgd from Area III. He testified that the safe yield from Area II would be approximately 3.5 mgd. The District has not formulated an opinion as to the exact of amount of water that can be produced from the Area II and III Wellfields on a sustainable basis. However, the District believes that recent production levels, which have resulted in a stabilization of chloride concentrations, may be the most production that can be sustained from these facilities without adverse water resource impacts. That would mean approximately 4.5 mgd on an annual average basis from Areas II and III combined. It might be possible for the City to expand the reliable yield of the Area II Wellfield by constructing additional wells or through some other measures. But Brevard County’s North Brevard Wellfield, located immediately north of the City’s Area II Wellfield, utilizes the same SAS used by the Area II Wellfield, and Brevard County recently received an increased permitted allocation from the District for this facility. This would limit the City’s ability to expand the current production of water from the Area II Wellfield. Other limitations on expansion of production from Areas II and III include: the relatively high risk of contamination of the SAS from pollution sources such as underground petroleum storage tanks; the limited space available in an increasingly urbanized area for the construction of new wells; the chronic bio-fouling and encrustation of wells due to the high iron content of the SAS; and the low specific capacity of each production well. For these reasons, it is not clear at this point in time whether it is possible to sustain more water production from Areas II and III than the City has pumped in recent years. B. Area IV Application and TSR On March 6, 2001, the City of Titusville submitted its application to modify CUP 10647. Included in this application was a proposal to add a new Area IV Wellfield in northwest Brevard County to pump up to 2.75 mgd from the UFAS. The District issued a series of seven Requests for Additional Information in between April 5, 2001, and March 23, 2004. On December 15, 2004, the District issued its initial TSR for the CUP modification application. That TSR proposed to authorize the use of 2.75 mgd from the UFAS and 0.18 mgd of groundwater from the SAS from the proposed Area IV Wellfield and 3.3 mgd of groundwater from the SAS from the existing Area II and Area III Wellfields to serve a projected population of 56,565 in 2008. There was no request to extend or renew the permit, which expires February 10, 2008. Miami Corporation filed a petition challenging this TSR. On May 13, 2005, the City submitted a revised application for a separate Individual CUP for the Area IV Wellfield, rather than modifying its existing CUP 10647 to include the new wellfield, with a permit expiration of December 31, 2010. On May 25, 2005, the staff issued a revised TSR. That TSR proposed a new permit to authorize up to 2.75 mgd of groundwater from the UFAS and 0.178 mgd of groundwater from the SAS from the proposed Area IV Wellfield to serve a projected population of 59,660 in 2010. The revised TSR noted that the proposed permit expiration date for the Area II and Area III Wellfields would remain February 10, 2008. Vergie Clark filed a petition challenging the revised TSR, as did Miami Corporation. After various notices on the TSR and the revised TSR to interested persons in Brevard County, in August 2005 the District issued additional notice to interested persons in Orange, Seminole and Volusia Counties. As a result, all required public notices have been issued. On March 14, 2006, the City again revised its application, and on May 1, 2006, the District issued its second revised, and final, TSR--which is the TSR now at issue. The TSR at issue recommended that a CUP be issued to Titusville for 2.75 mgd of groundwater from the UFAS and .18 mgd of groundwater from the SAS for wetland hydration and aquifer recharge from the Area IV Wellfield on an annual average basis to serve a projected population of 63,036 in 2010. This TSR provided that the proposed permit would expire December 31, 2010. TSR at Issue Water Use Allocation The CUP recommended by the TSR would only grant the City a water allocation from the Area IV Wellfield for 2009 and 2010. The recommended CUP would allow the City to withdraw water from the Area IV Wellfield at an annual average rate of 2.75 mgd during those years for public supply. (Other Condition 4) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 3.85 mgd during the four consecutive months of the dry season, which can occur during any time of the year. If 3.85 mgd is withdrawn during this four-month period, the withdrawal rate for the remaining 8 months cannot exceed 2.21 mgd. (Other Condition 8) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 4.41 mgd during any single month. (Other Condition 7) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 6.5 mgd during any single day during a severe drought, when the existing sources (meaning Areas II and III) cannot be used without inducing water quality degradation or exceeding permitted quantities. (Other Condition 9) The CUP recommended by the TSR would allow the City to withdraw water from the SAS extraction wells at an annual average rate of up to 0.178 mgd in 2009 and 2010 for wetland hydration and surficial aquifer recharge. (Other Condition 6) The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined annual average rate of 5.79 mgd in 2009 and a combined annual average rate of 6.01 mgd in 2010. The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined maximum daily rate of 8.88 mgd in 2009 and 9.0 mgd in 2010. (Other Conditions 5, 9) The CUP recommended by the TSR would reduce Titusville's combined annual average and maximum daily allocations from the Area II, III and IV Wellfields in 2009 and 2010 by an amount equivalent to the quantity of water purchased from the City of Cocoa during each year. (Other Conditions 5, 9) Other Condition 10 in the recommended by the TSR notifies the City that nonuse of the water supply allocated by the CUP for two years or more is grounds for revocation by the District's Governing Board, permanently and in whole, unless the City can prove that its nonuse was due to extreme hardship caused by factors beyond the City's control. Permit Duration The CUP recommended by the TSR would not allow the City to withdraw water from the Area IV Wellfield earlier than January 1, 2009; as indicated, it would expire on December 31, 2010. (Other Conditions 2, 4). Saline Water Intrusion The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed saline water monitoring plan by sampling and analyzing Saline Water Monitor Wells SWMW 1-6 and UFAS production wells 401, 403, 405, 407, 409, 411, 413 and 415 quarterly for water levels, chloride and total dissolved solids. (Other Condition 11) The CUP recommended by the TSR contains a permit condition authorizing the District to modify the allocation granted to the City in whole or in part or to otherwise curtail or abate the impact in the event of saline water intrusion. (Other Condition 14) The CUP recommended by the TSR contains a permit condition requiring the City to cease withdrawal from any UFAS production well, if any quarterly water sample from that well shows a chloride concentration exceeding 250 mg/l. That same condition would limit the operation of any UFAS production well with a quarterly sample exceeding 250 mg/l to six hours per day with a minimum 24 hours recovery between pumping cycles if subsequent samples contain chloride concentrations between 200 mg/l and 249 mg/l. (Other Condition 25) Environmental Impacts and Avoidance and Minimization The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed environmental monitoring plan for hydrologic and photo- monitoring at 16 wetland sites within one year of permit issuance and to establish a baseline prior to the initiation of groundwater withdrawals. That same condition requires the City to collect water level data at each wetland site either on a daily or weekly basis and report to the District every six months in District-approved, computer-accessible format. (Other Condition 12) The CUP recommended by the TSR contains a permit condition authorizing the District to revoke the permit in whole or in part or to curtail or abate impacts should unanticipated adverse impacts occur to wetlands, lakes and spring flow. (Other Condition 23) The CUP recommended by the TSR contains a permit condition authorizing the District to require the City to implement the proposed avoidance and minimization plan should unanticipated impacts occur to Wetland A4-2 (a shallow marsh near the middle of the wellfield) within 90 days of notice by the District. That same permit condition authorizes the District to require the City to submit a wetland rehydration plan for any other adversely affected wetland within 30 days of notice by the District and to implement the plan without 90 days of approval by the District. The District would require the City to implement avoidance measures before the wetlands are actually allowed to suffer adverse impacts. (Other Condition 24) Impacts to Other Existing Legal Users of Water The CUP recommended by the TSR contains a permit condition authorizing the District to require mitigation of any unanticipated interference to existing legal users of water due to withdrawals from the Area IV Wellfield. Mitigation may include installation of a new pump or motor, installation of additional drop pipe, new electrical wiring, connection with an existing water supply system, or other appropriate measures. (Other Condition 15) Water Conservation Measures and Reuse The City is implementing extensive water conservation measures. The City’s water conservation plan includes public education measures (e.g., televised public service announcements, helping to create water conservation videos and distributing them to the public, commissioning an award winning native plant mural, providing exhibits and speakers for public events), toilet and showerhead retrofits, and a water conservation based rate structure. A water conservation rate structure provides the potable water customer with an economic incentive to use less water. The most common conservation rate structure is a tiered-rate whereby the cost per gallon of water increases as the customer uses more water. While the District reviews the rate structure to evaluate whether it will achieve conservation, it does not mandate the cost per gallon of water. An audit of the City’s potable water distribution system was conducted and recent water use records were evaluated to determine if all necessary water conservation measures were in place. The audit indicated that the potable water system has small unaccounted-for water losses, approximately 6.5 percent, and relatively low residential per capita water use. The City has implemented a water conservation plan that implements rule requirements; as a result, the City has provided reasonable assurance that it is implementing all available water conservation measures that are economically, environmentally, or technologically feasible. The City cannot use reclaimed water to meet its potable water demands associated with direct human consumption and food preparation. However, reclaimed water can be used to replace that part of the City’s allocation that is associated with irrigation-type uses. The City has operated a reclaimed water reuse system since 1996. It is projected that 67 percent of the available wastewater flows will be utilized by 2010 for irrigation, with the remainder going to a wetland system during wet weather periods when irrigation demands are low. The City is using reclaimed water to the extent it is economically, environmentally and technologically feasible. In the case of public supply, the District looks to the amount of water requested for each person in a projected population in determining whether the water will be used efficiently. The metric that the District normally considers when conducting this part of the evaluation is the per capita usage. Population Projections and Per Capita Water Use As indicated, the proposed CUP would expire on December 31, 2010. Although the City and District would anticipate an application for renewal to be filed, demand for water projected beyond December 31, 2010, is not relevant to the need for the proposed CUP. In the case of public supply, projected demand for water usually is calculated by multiplying the projected population times per capita water use. Gross per capita (“GPC”) use in gallons per day (gpd) is the type of metric normally used to project demand for public supply of water. It is based on residential use and all other water uses supplied by the utility, including commercial, industrial, hotel/motel, and other type uses. That includes supply necessary to meet peak demands and emergencies. DEP requires that every public water supply system have an adequate water supply to meet peak demands for fire protection and health and safety reasons. If peak demands are not met, a major fire or other similar catastrophe could depressurize a public water system and possibly cause water quality problems. Projections of need for water in the future must take into account peak demands and emergency needs. Water used for those purposes is included in the historical average daily flows (ADF) from which historical GPC is derived. Unless there is good information to the contrary, in projecting GPC one assumes that those uses will increase roughly in proportion to the residential use. City's Projection Contending that the University of Florida Bureau of Economic and Business Research (BEBR) does not estimate or project population for municipalities, and that BEBR projections are based on historical trends that would under-project population in the City, the City used a different source and method to project population in the City's water service area on December 31, 2010. For its method, the City had Courtney Harris, its Planning Director, project the number of dwelling units that would be developed and occupied in 2011, calculating the additional people associated with each unit (based on the 2000 Census, which identified 2.32 as the average number of persons per dwelling unit in the City), and adding the resulting number to the City’s existing service area population as of 2005. The City's method yielded various results depending on when proposed developments in the City were reviewed. Ultimately, the City projected a population of 60,990 at the end of 2010. The City's method depends on the ability of its Planning Director to accurately predict the timing of new residential construction and sales, which is not easy to do (as indicated by the different results obtained by the City over time), since there are many factors affecting residential development and the real estate market. The ultimate predictions of the City's Planning Director assume that residential development will continue at an extraordinarily high pace although there already was evidence of downturn. The City's method also assumed that all new units will be sold (which, again, is contingent on market conditions) and fully occupied (although a 90 percent occupancy rate would be a more realistic.) The method also does not account for decreases in population in a number of areas in the Titusville service area (while overall population increased, mostly as a result of growth that has been occurring in a single census tract.) The City's witnesses then calculated a per capita water use rate by averaging the actual rates for the 11 years from 1995 through 2005, which resulted in projected per capita water use rate of 100.35, and a projected demand of 6.12 mgd at the end of 2010. The justification for averaging over 11 years, instead of the last five years, was that the last five years have been unusually wet, which would depress demand to some extent. However, using 11 years also increased the average water use by taking into account the higher use rates common before conservations measures, including conservation rates, went into effect (in particular, 123.75 gpd for 1995, 122.36 gpd for 1996, and 109.94 gpd for 1998.) Since 1998, and implementation of the conservation rates and other measures, water use rates have been significantly lower. While the average over the last 11 years was 100.35 gpd, the average over the last five years (from 2001- 2005) was just 92.15 gpd. Averaged since 1998, the City's water use rate has been 93.34 gpd. While wetter-than-normal conditions would be expected to depress water use to some extent due primarily to decreased lawn irrigation, many of the City's water customers have private irrigation wells for this purpose. Besides, Mr. Peterson, the City's Water Resources Manager, testified that not many of the City's water customers use potable water for lawn irrigation due to the new conservation rates. Petitioners' Projection Miami Corporation's population expert, Dr. Stanley Smith, is the Director of BEBR. Dr. Smith projected the population for the City's service area by first developing an estimate of the population of the water service area in 1990 and 2000 using block and block group data, and then using those estimates to create estimates from 2001-2005. Dr. Smith then projected population in the City's water service area using a methodology similar to what BEBR uses for county projections. Dr. Smith's methodology used three extrapolation techniques. He did not use a fourth technique, often used at BEBR, called shift-share, because he believed that, given Titusville's pattern of growth, using shift-share might produce projections that were too low. In developing his final projections, Dr. Smith also excluded the data from 1990 to 2000 because growth during that period was so slow that he felt that its inclusion might result in projections that were too low. Dr. Smith's approach varied slightly from the typical BEBR methodology in order to account for the fact that the City's growth has been faster since 2000. Dr. Smith applied an adjustment factor based on an assumption also used by the City's expert that 97.3 percent of the projected population within the City's water service area in 2010 would be served by the City. Using his method, Dr. Smith projected the population of the Titusville water service area to be 53,209 on December 31, 2010. Based on recent population estimates, Dr. Smith believes that, if anything, his projections are too high. It was Dr. Smith's opinion from the data that the annual increases for Titusville and the Titusville water service area peaked in 2003 and that they had been declining since that time. That was especially true of 2006, when the increase was the smallest that it had been for many years. Petitioners' expert, Mr. Drake, calculated a per capita water use rate by averaging the actual rates for the most recent five years (2002-2006), which resulted in a per capita water use rate of 89.08 gpd, and a projected demand of 4.74 mgd at the end of 2010. He also calculated a per capita water use rate for 2006, which came to 88.65 gpd, which would give a slightly lower projected demand of 4.72 mgd. Ultimate Finding of Projected Water Demand Based on all the evidence, it is found that Dr. Smith's projection of the population that will use City water on December 31, 2010, is more reasonable than the City's projections. The City and District contend that, regardless of the calculated per capita water use rate, it is appropriate to base the City's allocation on a rate of 100.35 gpd because 90 to 100 gpd is very conservative per capita water use rate for a public water supply utility. However, the allocation should be based on the best estimate of actual demand, not a general rate commonly assumed for water utilities, even if conservative. The City and District also contend that it is appropriate to base the City's allocation on a higher use rate because the climatic conditions experienced in the City over what they considered to be the most recent five years (2001- 2005) have been average-to-wet. More rainfall generally means less water use, and vice-versa, but the greater weight of the evidence proved that the City's demand for water has not varied much due to climatic conditions in recent years (after implementation of conservation measures, including conservation rates.) (City Exhibit 19, which purported to demonstrate the contrary, was proven to be inaccurate in that it showed significantly more water use during certain drier years than actually occurred.) However, in 2000--which was after the implementation of conservation rates and also the City's driest year on record (in approximately 75 years)--the water use rate was approximately 97.5 gallons per person per day. An average of the last eight years (1999-2006), which would include all years clearly responsive to the conservation rates as well as the driest year on record, would result in a per capita water use rate of approximately 92.8 gpd, and a projected demand of approximately 4.94 mgd by December 31, 2010. The District argues in its PRO that, because a CUP water allocation is a legal maximum, it would be inappropriate to base the City's water allocation on demand during a wet or even an average year (which, it says, would set the permittee up to violate its permit requirements 50 percent of the time). If, instead, the City's water allocation were based on demand during 2000, the driest year on record, projected demand would be approximately 5.2 mgd on December 31, 2010. Those calculated water allocations--i.e., either the 4.94 mgd or the 5.2 mgd--would then be compared to the probable safe and reliable yield of 4.5 mgd from Areas II and III to determine the deficit on an annual average basis. Allowing a reasonable margin of error for the uncertainties of the predictions involved, a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd. Mr. Jenkins suggested in rebuttal that, if the need for water is less than that set out in the proposed CUP in the TSR at issue, a CUP should nonetheless be issued but with lower water allocations. While the evidence supports a reduction of the annual average limit from 2.75 mgd to 0.75 mgd, there was insufficient evidence to show how the other water allocation limits in the proposed CUP should be changed. For the past 12 years, the City of Titusville has been able to purchase water under a contract with the City of Cocoa to meet all of its demands, including any peak or emergency water demands. Under the take-or-pay provision in the contract currently in effect, the City must pay for 0.5 mgd and presumably would take and use at least that amount so long as the contract remains in effect. This would reduce the City's projected water supply deficit through the end of 2010, and the City could rely on the Cocoa contract to cover any additional demand through the end of 2010 without Area IV. However, under the contract, the City can give notice on or before April 1 of the year in which it intends to terminate the contract effective October 1 of the same year. If a CUP for Area IV is issued, the City could terminate the current contract effective as early as October 1, 2008. It also is possible that the contract could be negotiated so that its termination would coincide with the time when the Area IV Wellfield becomes operational if not near October 1 of the year. As indicated, even if the contract remains in place, to the extent that the City receives water from the City of Cocoa for potable use during either 2009 or 2010, the allocations under the proposed TSR will be reduced an amount equivalent to the quantity provided to the City by Cocoa in that year. Finally, as indicated, the existing CUP for Areas II and III is set to expire in February 2008. Although it is anticipated that the City will apply to renew the existing CUP for Areas II and III, and that the District will approve a renewal at some level, it is not clear how much production will be approved for Areas II and III for the years 2009 and 2010. Meanwhile, the CUP proposed for Area IV provides that the combined annual groundwater withdrawals for public supply for the Areas II, III, and IV may not exceed 5.79 mgd for 2009 and 6.01 mgd in 2010. Based on the findings in this case, those figures should be reduced to no more than 5.2 mgd, and it must be anticipated that a similar condition would be placed on any renewal of the existing CUP for Areas II and III as well. Site Investigation At the time the City decided to apply for a CUP for Area IV, it was known that the UFAS in much of Brevard County was not suitable as a source of potable water supply, but there was believed to be a tongue of the UFAS in the northwest corner of the County and extending towards the southeast, and narrowing in that direction, that might be suitable for that purpose, particularly in the upper part of the aquifer. Because there was insufficient information to adequately evaluate the whether proposed Area IV, which was located along the Florida East Coast Railway (FEC) Right-of-Way (ROW), could be used for that purpose, the City’s consultant, Barnes, Ferland and Associates (BFA), designed a drilling and testing program to collect site-specific information in order to characterize the groundwater quality, identify the thickness of the freshwater zone in the UFAS, and determine hydraulic parameters for the groundwater system. In addition, DRMP conducted an environmental assessment of the Area IV Wellfield and surrounding property. The drilling and testing program designed by BFA for the Area IV Wellfield was similar to other hydrogeologic investigations conducted in the region with respect to wellfields operated by the City of Edgewater, the City of New Smyrna Beach, the City of Ormond Beach, the Orlando Utilities Commission and Orange County. The drilling and testing program for the Area IV Wellfield included Time-Domain Electromagnetic Mapping ("TDEM") performed by SDII Global, a consultant retained by the District. TDEM is not typically used for the hydrogeologic investigation of a new wellfield. The TDEM technique involves estimating the depth to the 250 mg/l and 5,000 mg/l chloride concentration in the groundwater system using electrical resistivity probes. The technique was applied at four locations along the FEC Right-of- Way. In addition to the TDEM study, BFA installed three test production wells along the FEC ROW, collected lithologic samples with depth, performed borehole aquifer performance and step drawdown tests at two test sites and recorded water quality with depth through grab and packer samples. The northernmost test production well was Test Site 1, which corresponds to Area IV production well 401. The middle test production well was Test Site 3, which corresponds to either Area IV Well 412 or Area IV Well 413. The southernmost test production well was Test Site 2, which is located approximately 1.5 miles south of the southernmost Area IV production well. Test Sites 1 and 2 were constructed first and Test Site 3 was drilled later because of unfavorable water quality conditions encountered at Test Site 2. Test Site 1 is located on the FEC ROW approximately 430 feet southeast of the Volusia-Brevard County line. At Test Site 1, BFA installed a test-production well (UF-1D), a UFAS monitor well (UF-1S), and a SAS monitor well (SA-1) in 2001. In 2005 BFA installed two additional SAS monitor wells (MW-1 and RW-1) near Test Site 1. The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 250 feet below land surface and cased to a depth of 105-110 feet below land surface. Test Site 2 is located on the FEC ROW approximately 2.8 miles southeast of the Volusia-Brevard County line. At Test Site 2, BFA installed a single UFAS Monitor Well (UF-2S). The monitor well was drilled to a total depth of 210-220 feet below land surface. Test Site 3 is located on the FEC ROW approximately 1.4 miles southeast of the Brevard-Volusia County line. At Test Site 3, BFA installed a test production well (UF-3D), a UFAS monitor well (UF-3S), and a SAS monitor well (SA-3). The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 210 below land surface.. Since Test Site 3 is either Area IV Well 412 or 413, and assuming production well 415 will be located 1,200 feet southeast of Test Site 3, this means that Test Site 2 is located at least one mile southeast of the southernmost Area IV production well. Test Sites 4 and 6 are located approximately three miles southeast of Brevard-Volusia County line. SAS test production wells were constructed at both sites to a total depth of about 20-30 feet below land surface. The site-specific hydrogeologic data collected by BFA as part of the drilling and testing program verified the groundwater basin and flow direction shown in Figure 15 of City Exhibit 523. DRMP’s environmental assessment of the Area IV Wellfield spanned the period from 2002 through 2006. In Spring 2002, DRMP evaluated areas within the predicted 0.2 foot drawdown contour by assessing wetland vegetation, photographing wetlands, noting wetland hydrologic conditions, investigating soil condition and wildlife utilization and evaluating surrounding land uses and natural communities. In Fall 2002, DRMP evaluated potential monitoring sites both on and off Miami Corporation's property by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and wildlife utilization, evaluating surrounding land use and natural communities and locating suitable control sites. In Fall 2003, DRMP evaluated potential wetland monitoring sites near the southernmost Area IV production wells by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and evaluating surrounding land uses and natural communities. In Spring 2005, DRMP assessed wetlands surrounding the Area IV Wellfield by evaluating wetland vegetation composition and hydrologic conditions, photographing wetlands, investigating soil conditions, evaluating surrounding land use and natural communities and collecting GPS points. In Fall 2005, DRMP investigated the Clark property by evaluating wetland vegetation and hydrologic conditions, photographing wetlands, investigating soil conditions and wildlife utilization and evaluating surrounding land uses and natural communities. In Spring 2006, DRMP developed a revised environmental monitoring plan and avoidance and minimization plan based on the new SDI MODFLOW Model by locating the final wetlands monitoring sites, developing the hydrologic and vegetative monitoring protocol, establishing the scope of the baseline study, reviewing the preliminary pipeline routing, construction and discharge inlet structures and preparing and submitting plan documents to the District. DRMP evaluated the occurrence of listed animal and plant species in the vicinity of the Area IV Wellfield as part of its environmental assessment. DRMP reviewed the Natural Areas Inventory for the Area IV Wellfield site, which identifies occurrences of listed species within a designated area. Additionally, DRMP made note of animal and plant species during the site visits in 2002, 2003, 2005, and 2006. DRMP evaluated the Farmton Mitigation Bank as part of its environmental assessment. DRMP reviewed the permit files for the Farmton Mitigation Banks, including the annual environmental monitoring reports prepared by Miami’s consultants. In 2005, DRMP conducted a field assessment of the Clark property including a thorough investigation of the fish pond, which Petitioners claim was adversely impacted during one or more of the APTs conducted by the City at the Area IV Wellfield. It was not necessary for the City’s environmental consultants to visit each and every wetland in the vicinity of the proposed Area IV Wellfield. Typically, only representative wetland sites are visited during the environmental assessment process. The scope of the City's hydrologic and environmental investigation of the Area IV Wellfield was adequate and consistent with industry standards and the District protocol for testing aquifers and characterizing aquifer performance and groundwater quality at the site. Nonetheless, Petitioners contend that there were serious deficiencies in the investigation's implementation and that additional investigation should have been performed. Hydrostratigraphy The SAS at the Area IV Wellfield is 40-to-50 feet deep and is composed primarily of unconsolidated sand, shell and silt. The intermediate confining unit (ICU) at the Area IV Wellfield consists of the Hawthorne Group and ranges in thickness from 40 to 60 feet. The top of the ICU is located 40- 50 feet below land surface and the bottom of the ICU is located 100 feet below land surface. This unit is composed of varying amounts of sand, shell, silt, indurated sandstone, clay, and some limestone. It tends to restrict the movement of water from the SAS to the UFAS. The UFAS at the Area IV Wellfield is a fairly homogenous limestone unit, which starts approximately 100 feet below land surface and extends to about 450 feet below land surface or 425 feet below mean sea level. It consists of the Ocala Group and grades into the upper portion of the Avon Park Formation. The middle confining unit (MCU) at the Area IV Wellfield starts at approximately 450 feet below land surface or 425 feet below mean sea level and ends approximately 1,000 feet below land surface. It comprises a denser, fine-grained dolomitic limestone within the Avon Park Formation. The MCU restricts the movement of water between the UFAS and LFAS. The location of the MCU at the Area IV Wellfield was determined by examining cuttings and video logs collected during drilling performed at Test Sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. The MCU can be distinguished from the UFAS by the presence of both dolomite and limestone. The lithologic log for Test Site 1 indicates the presence of gray/tan limestone between 450 and 460 feet below land surface and light/gray limestone and dolomitic limestone between 460 and 470 feet below land surface. The lithologic log for Test Site 3 indicates the presence of tan dolomitic limestone between 450 and 460 feet below land surface and tan limestone and dolomitic limestone between 460 and 470 feet below land surface. After examining the video log for Test Site 1, Petitioners’ expert, Dr. Thomas Missimer, noted a “lithologic change” at 477 feet below land surface. Other characteristics of the MCU are a lower resistivity and a sharp decrease in flow. The data collected at Test Site 1 shows a reduction in resistivity at approximately 470 feet below land surface. The flow meter log for Test Site 1 exhibits a decrease in flow at approximately 450 feet below land surface. Petitioners’ experts, Thomas Missimer, Alge Merry, and Bruce Lafrenz contend that the top of the MCU at the Area IV Wellfield is located deeper than 450 feet below land surface or 425 feet below mean sea level. This contention is based on regional reports, the geophysical logs reported by BFA, and one of the packer tests conducted at the bottom of the test wells that showed a pumping rate of 85 gpm. The greater weight of evidence indicates the top of the MCU at the Area IV Wellfield starts at the elevation identified by BFA. The regional reports are not based on data collected from the immediate vicinity of the Area IV Wellfield. Additionally, the BFA's professional geologists who determined the top of the MCU included Joel Kimrey, who was the former head of the local USGS office, and had more experience with the hydrogeology of the MCU in Brevard and Volusia than any of the Petitioners’ geologic experts. Also, the BFA geologists had access to the drill cuttings, which were unavailable to the Petitioners’ experts when they made their determination. Finally, the pumping rate recorded during the packer test could be explained by an area of higher permeability within the MCU. More likely, the packer may have been partially open to the bottom of the UFAS. The Lower Floridan Aquifer System (LFAS) starts at about 1,000 feet below land surface and ends approximately 2,300 feet below land surface. Head Difference Data Head refers to the pressure within an aquifer. In an unconfined aquifer, it is the water table. In a confined or semi-confined aquifer, it is the level to which water would rise in a well penetrating into the aquifer. Head difference refers to the numerical difference between two water levels either in different aquifer at the same location or different locations in the same aquifer. In the context of the Area IV Wellfield, static head difference is the difference between the elevation of the water table in the SAS and the elevation of the potentiometric surface of the UFAS under non-pumping conditions at the same location. The static head difference reflects the degree of confinement in the ICU. If the static head difference between the SAS and UFAS is a large number, this indicates a high degree of confinement between the two systems. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006 and calculated the head difference based on those measurements. District expert, Richard Burklew, was present when the measurements were taken in April 2004 and July 2006 and verified the readings made by the City’s consultants. During all three sampling events a downward head gradient was noted at each site, which means the water table had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head difference at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. Finally, in July 2006, the measured head difference at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of those observed head differences was 7.46 feet. At the time the head difference measurements were taken in July 2006, the region had experienced a rainfall deficit of 17 inches over the prior 12 months. Petitioners contend that the rainfall deficit may have skewed that head difference observation. However, according to the District’s expert, Richard Burklew, this would not necessarily have affected the head difference measurements because the hydrologic system would seek equilibrium, and the head difference would be the same. BFA collected static head difference measurements from Test Sites 1, 2 and 3 during both wet and dry seasons. The measurements do not show significant differences between seasons. Head difference data collected from hundreds of other Florida locations also do not show significant differences between seasons. This suggests that static head difference remains fairly constant at the Area IV Wellfield year round. Water level measurements taken by the City’s consultants from the wells on Clark’s property and reported in City Exhibit 52 do not determine static head difference between the SAS and UFAS because the exact construction of the wells was unknown, the completion depth of certain wells was unknown, the operational history of the wells was unknown, and the putative SAS well was located several hundred feet away from the UFAS well. For example, the depth of one of the wells is reported as 57 feet, which could easily be located in the ICU. If that is the case, then the head difference measured by comparing to the water level in this well would only be the head differential between the ICU and the UFAS. Finally, the Clark property is located in a more elevated region than Test Sites 1, 2, and 3, which means the water table will be lower and the head difference will be less than at the Area IV Wellfield. Water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 on Miami Corporation’s property do not determine static head difference between the SAS and UFAS because critical information concerning the construction of these wells is unknown. Additionally, the wells are much shallower than test production wells at Test Sites 1, 2 and 3. The water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 are not necessarily inconsistent with head difference measurements collected by BFA at Test Sites 1, 2 and 3. The head differences at these four well sites could be 6, 4, 7, and 6 feet, respectively, depending how the water measurements were made. Also, the measurements made by a driller could not be expected to be as accurate as measurements made by trained hydrologists. Further, if the soils in the vicinity of Well 4177 indicated a depth to water table of 5 feet below land surface, that would not necessarily be inconsistent with the head difference measurements collected by BFA at Test Sites 1, 2 and 3. Depth to Water Table The depth to water table is defined as the difference between the land surface elevation and the head value in the SAS. The water table in the Area IV Wellfield area is consistently close to land surface and often above land surface. The construction of numerous above-grade forest roads and roadside ditches on the property surrounding the Area IV Wellfield has had the effect of impounding surface water and raising the water table near land surface. The Area IV Wellfield and vicinity have a variety of soil types. The predominant wetland soil type is Samsula Muck, which is classified as a very poorly drained soil with a water table either at or above land surface. The predominant upland soil type is Myakka Fine Sand, which is characterized by a water table within a foot of land surface during four months of the year and within 40 inches of land surface during remainder of the year. The average depth to water table at the Area IV Wellfield is approximately 1 foot based on soil types. SAS levels at the three Farmton Mitigation Banks were measured at piezometers installed by Miami Corporation’s consultants from 2001 through 2005. This data confirms the water table at the Area IV Wellfield is consistently close to land surface and frequently above land surface. It indicates the depth to water table is typically less than 3 feet and in many cases within a foot or two. Also, it does not matter whether any of the piezometers were located near wetlands because they show seasonal variation in water levels, where the water table changes from slightly above land surface to below land surface over the course of a year. A water table depth of 6-14 feet below land surface is not realistic at the Area IV Wellfield based on soil conditions and vegetation communities. Such a depth to water would be indicative of a landscape composed primarily of xeric scrub communities with few, if any wetlands. These types of communities do not exist near the Area IV Wellfield. Aquifer Performance Tests The flow of water through an aquifer is determined by three primary hydraulic coefficients or parameters: transmissivity; storage; and leakance. An aquifer performance test (APT) is a pumping test where water is removed from the well at a set rate for a set period of time and drawdown is measured in the well and in neighboring monitor wells to calculate the hydraulic properties of the hydrologic formation. The main hydraulic properties determined through an APT are transmissivity, leakance, and storativity. These properties are used to characterize the water production capabilities of the hydrologic formations. These properties are also used in groundwater modeling to project impacts for longer periods of time and larger distances. Aquifer parameters can be determined from an aquifer performance test using analytical "curve-matching" techniques or a groundwater flow model such as MODFLOW. Curve-matching techniques involve the creation of a curve through measurement of drawdown and the matching of that curve to standard curves derived using analytical equations. Hydraulic conductivity or “K” is the term used to describe the ability of a hydrogeologic unit to conduct fluid flow. It is usually expressed in terms of horizontal hydraulic conductivity or “Kx” and “Ky” and vertical hydraulic conductivity or “Kz.” Transmissivity is the term used to describe the rate of movement of water for a given thickness of a hydrogeologic unit. It is the hydraulic conductivity of an aquifer times its thickness. Storativity is the term used to describe the amount of water that is released from any aquifer for a given unit change in head, or the compressability of the aquifer system. This value can normally be determined during a 4-5 day aquifer performance test. Specific yield is the term used to describe the long- term capacity of an aquifer to store water. This value cannot normally be determined during a 4-5 day aquifer performance test. Leakance is the term used to describe the vertical movement of water from above or below a given unit in response to changes in head or pumpage. APTs are standard practice for evaluating the suitability of a new area for development as a wellfield. Three APTs were conducted at Test Sites 1 and 3. No aquifer performance tests were conducted at Test Site 2. Petitioners question whether the APTs for the Area IV Wellfield were conducted by BFA in accordance with the applicable standard of care in the hydrogeologic profession. The District’s expert, Richard Burklew, believes the three APTs conducted at Test Sites 1 and 3 were adequate for purposes of determining appropriate aquifer parameters. Two APTs were conducted by BFA at Test Site 1. The first test was conducted on January 30-31, 2001, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 44-48 hours, and Wells UF-1S and SA-1 were used as monitor wells. The second test was conducted on April 8-12, 2003, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 96 hours, and Wells UF-1S and SA-1 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day and a storativity of about 0.00036 on the basis of the 2001 APT at Test Site 1. They were unable to calculate a leakance value because the drawdown data did not reasonably fit the curve- matching techniques. For that reason, BFA performed another APT at Test Site 1 in 2003. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day, a storativity of 0.00045, and a leakance of 0.00029 day-1 on the basis of the 2003 APT at Test Site 1. One APT was conducted by BFA at Test Site 3 on April 10-13, 2001. Well UF-3D was pumped at about 700 gpm or approximately 1 mgd for 70 hours, and Wells UF-3S and SA-3 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,450 ft2/day, a storativity of 0.0002, and a leakance of 0.00026 on the basis of the 2001 APT at Test Site 3. However, because of problems with the test, leakance was not considered a good match for the analytical techniques. Leakance values determined by BFA from the APTs conducted at Test Sites 1 and 3 were based on the application of analytical curve-matching techniques. The leakance values determined through the conventional type curve-matching techniques employed by BFA are typically higher than the actual leakance values. They are also inherently limited because they assume the calculated leakance is due entirely to the ICU rather than a combination of the ICU and MCU as is the case at the Area IV Wellfield. The analytical techniques employed by BFA were unable to calculate separate leakance values for the ICU and the MCU. The best way to determine leakance values for each of these confining units was to use a MODFLOW model and observed head difference data. This was done by the City’s consultant, SDI, and is described in greater detail, infra. In January 2004, several APTs were conducted using two SAS wells referred to as Test Sites 4 and 6. These test sites are located more than 3 miles from the Clark property. Constant rate and variable rate APTs were conducted at both sites. During the constant rate tests, 230 gpm or about 0.33 mgd was pumped from the SAS well. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 2,500 ft2/day for the surficial aquifer at those locations. Water Quality Data Consistent with the general understanding of the freshwater groundwater tongue extending from Volusia into Brevard County, the TDEM performed by SDII Global indicated that the depths to the 250 mg/l and 5,000 mg/l chloride concentrations decrease as one proceeds south along the FEC ROW. For example, the depths to the 250 mg/l and 5,000 mg/l chloride concentrations were 442 feet and 542 feet, respectively, at the northernmost test site, which is somewhat north of the City’s Test Site 1. The depth to the 250 mg/l and 5,000 mg/l chloride concentrations were 406 feet and 506 feet, respectively, at the southernmost test site, which is somewhat south of the City’s Test Site 2. Sixteen water quality grab samples were collected every 20-30 feet as the test production well at Test Site 1 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. This type of sampling is referred to as drill-stem testing. The chloride concentrations in the samples collected from 120 feet and 480 feet below land surface were 59 mg/l and 879 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 460 feet below land surface was reached. Six water quality grab samples (drill-stem tests) were collected every 20-30 feet as the test production well at Test Site 2 was drilled, beginning 120 feet below land surface and ending 210 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 210 feet below land surface were 124 mg/l and 845 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 180 feet below land surface. Fourteen water quality grab samples (drill-stem tests), were collected every 20-30 feet as the test production well at Test Site 3 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 500 feet below land surface were 45 mg/l and 90 mg/l, respectively. The chloride concentrations in these samples never exceeded 90 mg/l. A packer test is a procedure used to isolate a particular well interval for testing. It is performed using an inflatable packer on the drill stem, which is placed at the interval to be blocked. The packer is inflated with water or air to isolate the interval to be sampled. A packer test can be used to collect water samples for analysis. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 1. At the interval of 331-355 feet below land surface one sample was taken with a chloride concentration of 672 mg/l. At the interval of 331-400 feet below land surface, one sample was taken with a chloride concentration of 882 mg/l. Finally, at the interval of 442-500 feet below land surface two samples were taken with chloride concentrations of 2,366 mg/l and 2,2712 mg/l. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 3At the interval of 270-295 feet below land surface, two samples were taken with chloride concentrations of 74 mg/l and 450 mg/l. At the interval of 340-400 feet below land surface, two samples were taken with chloride concentrations of 64 mg/l and 134 mg/l. Finally, at the interval of 445-500 feet below land surface, two samples were taken with chloride concentrations of 1,458 mg/l and 2,010 mg/l. No packer test samples were collected at Test Site 2, where it was clear that water quality was too poor to be used as a fresh groundwater source. The packer test samples collected at Test Sites 1 and 3 were collected using a higher pumping rate than typically recommended by the DEP and the United States Environmental Protection Agency (EPA). Consequently, the chloride concentrations in these samples are probably higher than the chloride concentrations found in the undisturbed groundwater at those depths. Since the packer sits on top of the borehole and restricts flow from above, it generally is reasonable to assume that a packer test draws more water from below than from above the packer. However, if transmissivity is significantly greater just above the packer, it is possible that more water could enter the packer from above. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 1. The chloride concentrations in the first and last grab sample were 59 mg/l and 58 mg/l, respectively. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 3. The chloride concentrations in the first and last grab samples were 19 mg/l and 52 mg/l, respectively. Nine water quality grab samples were collected every 12 hours during the 2003 aquifer performance test at Test Site The field-measured chloride concentrations in the first and last grab samples were 56 mg/l and 55 mg/l, respectively. The laboratory measured chloride concentrations in the first and last grab samples were 66 mg/l and 74 mg/l, respectively. The average chloride concentration for the water samples collected during the three APTs at Test Sites 1 and 2 was about 50 mg/l. Water is composed of positively charged analytes (cations) and negatively charged analytes (anions). When cations predominate over anions, the water is said to have a positive charge balance; when anions predominate over cations, the water is said to have a negative charge balance. Theoretically, a sample of water taken from the groundwater system should have a charge balance of zero. However, in real life this does not occur because every sample contains some small trace elements that affect its charge balance. Therefore, in the field of hydrogeology, a positive or negative charge balance of 10 percent or less is accepted as a reasonable charge balance error, and this standard has been incorporated in the permit conditions recommended by the District for the City’s permit. With one exception, all the water quality samples collected by BFA from Test Sites 1-3 had an acceptable charge balance. The one exception was a sample collected from the packer interval of 270-295 feet below land surface at Test Site 3 with a chloride concentration of 74 mg/l. This sample has a positive charge balance of 32.30 percent. The sample collected from the packer interval of 270- 295 feet below land surface at Test Site 3 has an overabundance of cations probably caused by grouting and cementing of the packer prior to taking the sample. Since chloride is an anion and not a cation, any error associated with this sample would not effect the validity of the 74 mg/l chloride concentration measured in this sample. This conclusion is also supported by the fact that two samples were collected from the same well at a packer interval of 340-400 feet below land surface with acceptable charge balances and they contained chloride concentrations of 64 mg/l and 134 mg/l. The District’s experts, Richard Burklew and David Toth, believe the 450 mg/l chloride concentration measured in a sample taken from the packer interval of 270-295 feet below land surface at Test Site 3 is a faulty measurement and should be discarded as an outlier. Dr. Toth testified that the sodium to chloride ratio indicates there was a problem with this measurement, which would call into question the reported chloride value. In 2004 and 2005, the City collected SAS water quality samples from Test Sites 4 and 6 and Monitor Wells MW-1 and RW-1 near Test Site 1. The samples were analyzed for all applicable water quality standards, which might preclude use of water from the SAS extraction wells to directly augment wetlands. The analyses found that the SAS water quality near the proposed extraction wells was very similar to the SAS water quality near the Area IV production wells and that water could be applied to the wetlands without any adverse water quality consequences. Area IV UFAS Flow Patterns and Basin Boundaries Although the United States Geologic Survey (USGS) potentiometric surface maps do not show any data points in the vicinity of the proposed Area IV Wellfield, and they are not sufficient by themselves to formulate opinions regarding the future operation or impacts of the proposed wellfield, Petitioners contend that these potentiometric surface maps demonstrate that the freshwater found in the UFAS at the Area IV Wellfield is due to local freshwater recharge only and not freshwater flow from the northwest. They point to a regional report indicating that there is a groundwater basin divide just north of the Area IV Wellfield. This report is based on a 1980 USGS potentiometric surface map. However, another regional report indicates that the groundwater basin divide occurs south of the Area IV Wellfield. This report is likely based on a 1998 USGS potentiometric surface map. Because of the lack of data points in rural northwest Brevard County, the City did not rely on any groundwater basin divide maps, but rather collected site specific information regarding the proposed Area IV Wellfield. The District’s expert and the Petitioners’ own expert (the sponsor of Petitioners' potentiometric surface map exhibits) noted several errors in the flow direction arrows added by Petitioners to the maps. In addition, after reviewing the potentiometric surface maps presented by Petitioners, the District’s expert concluded that, in addition to local freshwater recharge, the predominant flow into the vicinity of the Area IV Wellfield is generally from the northwest and southwest. To confirm his opinion, the District’s expert examined the head difference data collected in July 2006. At well UF-1S, the UFAS observation well at site 1, the elevation in the well was 16.27 NGVD. At site 3, which is southeast of site 1, the elevation in the UFAS observation well was 15.68 NGVD. At site 2, which is southeast of site 3, the elevation in the UFAS well was 13.87 NGVD. Since water generally flows from the highest to lowest head measurements, these measurements indicated that water would have been flowing from the northwest to the southeast in the vicinity of Area IV. However, the potentiometric surface can change both seasonally and yearly; likewise, the basin boundaries may also change. SAS and UFAS Drawdown Predicting drawdown in the SAS and UFAS in the vicinity of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and impacts on wetlands, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable drawdown. Initially, BFA prepared and submitted groundwater flow simulations of the Area IV Wellfield prepared using an analytical model known as the “Multi-Layer/SURFDOWN Model.” Although the District initially accepted the submission as providing reasonable assurance to support the District's initial TSR, Miami Corporation petitioned and criticized the City's model as not actually providing reasonable assurance, both because of its predicted SAS drawdown and because it was an analytical model (which can only represent simple conditions in the environment, assumes homogenous conditions and simple boundary conditions, and provides only a model-wide solution of the governing equation). By comparison, a numerical model allows for complex representation of conditions in the environment, heterogeneous conditions and complex boundary conditions, and cell-by-cell iterative solutions of the governing equation that are typically performed by a computer. Over the past 10 to 15 years, a numerical model called MODFLOW has become the standard in groundwater modeling throughout the United States and much of the world. All of the Florida water management districts utilize MODFLOW or are familiar with it, so it is a model of choice today for groundwater flow modeling. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable drawdown. Miami Corporation's petition was scheduled for a final hearing in June 2005 that was continued until September 2005 after the first revised TSR was issued in May 2005. The final hearing was continued again until February 2006 to allow discovery and hearing preparation by Vergie Clark, who filed her petition in July 2005. As the case proceeded towards a February 2006 final hearing on the pending petitions, the City eventually made what actually was its second attempt to develop a calibrated MODFLOW model of the Area IV Wellfield. Unbeknownst to the District, BFA already had attempted to develop a MODFLOW Model of the Area IV Wellfield in 2004, with the assistance of Waterloo Hydrogeologic, Inc. (WHI) (which later was retained as Petitioners’ consultant in this case in a reverse of the Hartman client switch). When BFA ended its efforts with WHI, their efforts to calibrate a MODFLOW model for Area IV that would predict acceptable drawdown was unsuccessful, and none of those modeling efforts were submitted or disclosed to the District. In the fall of 2005, the City turned to another consultant, SDI, to attempt to develop a calibrated MODFLOW Model of the Area IV Wellfield. SDI initially prepared a so- called MODFLOW model equivalent of the Multi-layer/SURFDOWN Model prepared by BFA. It was presented to District staff at a meeting held in January 2006 for the purpose of demonstrating to District staff that the MODFLOW model equivalent of the Multi- layer/SURFDOWN Model generated results for the Area IV Wellfield that were not very different from the results obtained by BFA using their Multi-layer/SURFDOWN Model. Petitioners criticized several weaknesses in the MODFLOW equivalent model and maintained that the modeling efforts to date did not give reasonable assurance of no unacceptable SAS drawdown. By this time, the District had decided to retain Dr. Peter Huyakorn, a renowned modeling expert. Based on his recommendations, the District required the City to produce a calibrated MODFLOW model of Area IV (as well as numerical solute transport modeling, which will be discussed below). The scheduled final hearing was continued until September 2006 to allow time for this work to be completed, discovered, and evaluated. After the continuance, the City had SDI prepare a calibrated MODFLOW model to predict the drawdown that would result from operation of Area IV. SDI produced such a model in March 2006. This model predicted less drawdown. Specifically, a steady-state simulation of a 2.75 mgd withdrawal from the proposed 15 UFAS production wells and a 0.18 mgd withdrawal from the four proposed SAS extraction/wetland augmentation wells predicted the maximum drawdown of the surficial aquifer to be less than 0.5 foot (which, as discussed infra, would be acceptable). (UFAS drawdown, which is not an issue, was predicted to be an acceptable 12 feet.) But Petitioners questioned the validity of the model for several reasons, including its suspect calibration. Dr. Huyakorn also had questions concerning the calibration of SDI's March 2006 MODFLOW model, but subsequent work by SDI satisfied Dr. Huyakorn and the District, which issued the TSR and proposed CUP at issue in May 2006 based in part on SDI's March 2006 MODFLOW model, despite Petitioners' criticisms. The final hearing was continued until September 2006 to give Petitioners time to complete discovery on SDI's March 2006 MODFLOW model (as well as the City's new solute transport modeling, which is discussed, infra). To calibrate its March 2006 MODLFOW, SDI first used a transient MODFLOW model to simulate data from the 4-day aquifer performance test (APT) from the Area IV Wellfield sites (the transient APT calibration). (A transient model is used to analyze time-dependent variable conditions and produces a time- series of simulated conditions.) Then, after calibrating to the APT data, SDI used a steady-state, non-pumping MODFLOW model (a time-independent model used to analyze long-term conditions by producing one set of simulated conditions) to simulate the static head difference between the SAS and UFAS (the steady- state head difference calibration). If the head difference simulated in the steady-state calibration run did not match the measured head difference, the ICU leakance was adjusted, and then the revised parameters were rechecked in another transient APT calibration run. Then, another steady-state head difference calibration run was performed in an iterative process until the best match occurred for both calibration models. In order to achieve calibration, SDI was required to make the ICU leakance value several times tighter than the starting value, which was the value derived in the site-specific APT using conventional curve-matching techniques (and relatively close to the values ascribed to the region in general in the literature and in two regional models that included Area IV near the boundary of their model domains--namely, the District's East Central Florida (ECF) model, which focused on the Orlando area to the south and west, and its Volusia model, which focused on Volusia County to the north). SDI's calibrated ICU leakance value derived from calibration to observed static head differences is more reliable than an ICU leakance value derived from an APT using conventional curve-matching techniques. That leaves a question as to the quality of the static head difference measurements used for SDI's calibration. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006. On each occasion, a downward head gradient was noted at each site, meaning the water table (i.e., the SAS) had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head differences at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. In July 2006, the measured head differences at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of these observed head differences for the Area IV Wellfield was 7.46 feet. BFA's static head difference measurements included both wet and dry seasons. The measurements do not show significant differences between seasons and suggest that static head difference remains fairly constant at the Area IV Wellfield year round. This is typical of head difference data collected from hundreds of other Florida locations because the hydrologic systems seek equilibrium. Petitioners questioned taking an average of the head difference measurements because the region had experienced a rainfall deficit of 17 inches over the 12 months prior to time the measurements in July 2006 were taken. By itself, a rainfall deficit would not affect head difference measurements because the hydrologic system would seek equilibrium. But there was evidence of a possibly significant rainfall near Area IV not long before the July 2006 measurements. If significant rain fell on Area IV, it could have increased the static head differences to some extent. But there was no evidence that such an effect was felt by Area IV. Petitioners also contend for several other reasons that the static head differences used by SDI as a calibration target were "not what they are cracked up to be." They contend that "limited spatial and temporal extent . . . renders them inappropriate calibration targets." But while the site-specific static head difference measurements were limited, and more measurements at different times would have increased the reliability of the average static head difference used in SDI's steady-state calibration, the head difference measurements used were adequate. For a groundwater model of Area IV, they were as good as or better than the head differences used by Petitioners' expert modeler, Mr. LaFrenz of Tetratech, who relied on SAS and UFAS head levels from the regional-scale ECF model, which were measured by the United States Geological Survey (USGS) in May and September 1995. Petitioners also contended that the measured head differences used by SDI for the steady-state calibration of the March 2006 MODFLOW model were significantly higher than other measured head differences in the general vicinity of Area IV. One such location is Long Lake, which has saltwater and an obviously upward gradient (i.e., a negative head difference between the SAS and UFAS), whereas SDI's MODFLOW depicts it as having a five-foot downward gradient (positive head difference). However, all but one of those measurements (including from Long Lake) were from locations five or more miles from Area IV. In addition, the accuracy of the measurements from the closer location (and all but one of the more distant locations) was not clear, so that the seemingly inconsistent head differences measurements may not be indicative of actual inconsistency with the head difference measurements used by SDI. Petitioners also accused the City and its consultants of "playing games with specific yield" to achieve calibration with a tighter-than-appropriate ICU leakance value. But the City and the District adequately explained that there was no merit to the accusations. It was appropriate for SDI to use just the relatively small specific storage component of SAS storativity (the 0.001 value) in its transient calibration runs, instead of the larger specific or delayed yield component. Storativity is not utilized at all in the MODLFOW steady-state calibration runs and steady-state simulations. Based on the foregoing, it is found that Petitioners' factual disputes regarding SDI's calibrated ICU leakance value do not make the City's assurance of no unacceptable drawdown provided by its MODFLOW simulations unreasonable. That leaves several other issues raised by Petitioner with regard to the SDI's March 2006 MODFLOW model. In calibrating its MODFLOW model, SDI utilized a value for the MCU leakance that was twice as leaky as the published literature values for the area, which Petitioners claim would reduce simulated SAS drawdown. Although the use of a higher MCU leakance value in the model may result in a prediction of less SAS drawdown, the actual effect, if any, on the predicted drawdown, was not made clear from the evidence. In any event, an MCU leakance value for Area IV calibrated to site-specific data is more reliable than regional values. Petitioners also accused the City and its consultants of using inappropriate or questionable boundary conditions, topography, and depth to the water table. They also contend that incorrect topography--namely, a nonexistent five-foot ridge or mound northwest of Area IV--provides an artificial source of water for SDI's March 2006 MODFLOW model. But the boundary conditions for SDI's March 2006 MODFLOW model were clear from the evidence and were appropriate; and SDI's topography and water table depth were reasonably accurate (and on a local scale, were as or more accurate than the USGS topographic maps Petitioners were comparing). Besides, Dr. Huyakorn ran the Tetratech model with SDI's leakance value instead of Tetratech's value and got virtually the same drawdown results, proving that differences in topography between the two models made virtually no difference to the drawdown predictions of either model. As for the so-called "flow from nowhere," particle-tracking simulations conducted by experts from both sides established that, with pumping at 2.75 mgd, no water would enter the Area IV production zone from anywhere near the five-foot ridge area for at least 100 years. This gave reasonable assurance that the five-foot ridge or mound had no effect on the simulated results from SDI's March 2006 MODFLOW model. Petitioners also contend that the City's failure to simulate drawdown from pumping during the dry season, as opposed to a long-term average of wet and dry seasons, constituted a failure "to provide reasonable assurances as to the conditions that can be expected as a result of the anticipated operation of the wellfields." But the evidence was clear that long-term, steady-state groundwater model simulations are appropriate and adequate to provide reasonable assurance for CUP permitting purposes. See "Drawdown Impacts," infra. By definition, they do not simulate transient conditions such as dry season pumping. The SDI model predicts a maximum drawdown, from a 2.75 mgd withdrawal from all fifteen UFAS production wells and a 0.18 mgd withdrawal from the four SAS extraction wells, of slightly less than 0.5 feet in the SAS and of 12.0 feet in the UFAS in the immediate vicinity of the Area IV Wellfield. SDI’s model predicts a drawdown of 0.11 feet (approximately 1 inch) in the SAS and a drawdown of 2.2 feet in the UFAS at Ms. Clark’s property, which is located approximately 1 to 1.5 miles north of the Area IV Wellfield. It is found that SDI's March 2006 MODFLOW model for Area IV is the best such model in evidence. That is not to say that the drawdown predicted by SDI's model is a certainty. The other models were not proven to be better than SDI's, but they did demonstrate that simulated results would vary significantly in some cases if SDI's calibration and calibrated ICU leakance values were incorrect. Having more good hydrologic information would have made it possible to reduce the uncertainties present in SDI's model, but it is found that SDI's March 2006 MODFLOW model was sufficient to give reasonable assurance as to SAS and UFAS drawdown from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation. Drawdown Impacts As indicated, once drawdown is predicted with reasonable assurance, both interference with existing legal uses and impacts on wetlands, which relate to public interest, must be evaluated. Interference with Legal Uses Using SDI's March 2006 MODFLOW model, the City gave reasonable assurance that the drawdown predicted from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation will not interfere with existing legal users. The nearest existing legal users are located about one mile northwest and two miles east/southeast of the nearest proposed production well. The City’s MODFLOW modeling scenarios indicate that maximum drawdown in the SAS will be less than 0.5 feet and minimal (at most 2.2 feet) in the UFAS at the nearest active existing legal users. Obviously, drawdown would be much less at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). As indicated, the drawdown predicted by SDI's March 2006 MODFLOW model is not a certainty. Although not likely based on the more persuasive evidence, if actual drawdown approximates the drawdown predicted by the Tetratech model, there could be interference with existing legal users. (The Tetratech model predicts that the long-term average reduction in the water table of approximately 1.6 feet of drawdown near the center of the wellfield and drawdown of 0.4 feet to 0.5 feet extending out more than a mile from the proposed Area IV Wellfield.) There probably still would be no interference with existing legal users with pumping at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). In the event of that much actual drawdown and unanticipated interference from the City’s pumping, “Other Condition” 15 of the proposed permit requires that it be remedied. See Finding 36, supra. There is no reason to think such interference could not be remedied. Environmental Impacts from Drawdown Miami Corporation’s property in the vicinity of the proposed Area IV Wellfield is a mosaic of pine flatwoods uplands interspersed with wetlands. The wetlands are mostly cypress swamps, with some areas of hardwood swamp, marshes, and wet prairies. Miami Corporation's property is managed for timber and is also used for cattle grazing and hunting. Miami Corporation has constructed a network of roads and ditches on its property, but overall the wetlands are in good conditions. The areas east and west of the proposed Area IV Wellfield consist of cypress strands, which are connected wetlands. Compared to isolated wetland systems, connected wetlands are typically larger, deeper, and connected to waters of the state. They tend to have hardwood wetland species. Connected wetlands are less vulnerable to water level changes brought about by groundwater withdrawals because they tend to be larger systems and have a greater volume of water associated with them. They are able to withstand greater fluctuations in hydroperiods than isolated herbaceous wetland systems. Isolated wetland systems are landlocked systems. They tend to be smaller in size and shallower than connected wetland systems. Isolated systems tend to be more susceptible to changes in hydrology than larger connected systems. The upland plant communities present near the proposed Area IV Wellfield include pine flatwoods that have been altered by Miami Corporation's timber operations. There is a large area surrounding the Area IV Wellfield to the north that consists of forest regeneration after timbering. There was evidence of the presence of the following listed animal species at the site of the proposed Area IV Wellfield: wood storks, roseate spoonbills, ibis, bald eagles, Sherman fox squirrels, American alligator, sandhill cranes, wood storks, black bear, and indications of gopher tortoises. The habitat in the vicinity also supports a number of other listed species that were not observed. The following listed plants species were also observed during the environmental assessment and site visits: hooded pitcher plants, water sundew, pawpaw and yellow butterwort. Ms. Clark’s property adjoins a cut-over cypress swamp on the western side of her property, and there is also a small man-made fish pond in her backyard. Some clearing has taken place in the wetland system on the back portion of Ms. Clark’s property. What appears to be a fire break on Ms. Clark’s property encroaches upon the wetland system. The wetlands on Ms. Clark’s property have experienced some human activities such as trash dumping and clearing, which have resulted in a degradation of those systems. Some trees within the wetland systems on the back portion of Ms. Clark’s property have been logged. For the most part, the hydrology appears to be normal. However, some invasive species have encroached upon the system due to the clearing that has taken place. There was no evidence of listed plant or animal species present on Ms. Clark’s property. If drawdown is of the magnitude predicted by the SDI's March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. At 0.5 or 0.75 mgd, there clearly would not be any unacceptable environmental impacts. In addition, “Other Condition” 12 of the proposed permit requires the City to perform extensive environmental monitoring. The environmental monitoring plan proposed for the Area IV Wellfield provides reasonable assurance that changes to wetland hydrology and vegetation due to groundwater withdrawals will be detected before they become significant. “Other Condition” 12 of the proposed permit prohibits the City from pumping any water from the production wells until the monitoring network is in place. The baseline monitoring will give a clear indication of the existing conditions prior to the production wells coming on-line. Once the production wells are online, the City will continue the same procedures that they conducted prior to the production wells coming online. This will allow the City and the District to monitor the effects of pumping. The City’s proposed environmental monitoring plan is adequate to detect drawdown impacts and is consistent with environmental monitoring plans that have been developed for other wellfields throughout the State of Florida. Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose mitigation. If unanticipated harm is detected, “Other Condition” 24 of the proposed permit requires the City to implement an avoidance and minimization plan to rehydrate the wetlands and restore the water levels to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from SAS wells and piped to the affected wetlands. “Other Condition” 24 includes specific timeframes for implementing wetland rehydration in the event unanticipated impacts were to occur. In addition, the City could, on its own, change its pumping schedules. If an impacted wetland is near a particular well, the City could reduce or shut off water withdrawals from that well and thereby restore water levels in the wetland. Direct augmentation of wetlands has been used at other facilities such as those of Tampa Bay Water and Fort Orange. The direct augmentation at these other sites appears to be effective. Direct augmentation of wetlands has proven to be a feasible means of offsetting adverse changes in wetlands due to groundwater withdrawals, at least in some circumstances. There is a viable source of water that can be utilized to augment these wetland systems, namely a large canal south of the production wells. Based on the predicted drawdown, SDI estimated the quantity of water needed for implementation of the avoidance and minimization plan to be 0.18 mgd. The water quality in the canal is comparable to the water quality within any wetland systems that would be affected by drawdown. The City plans to have its augmentation plan in place prior to the production wells coming online. In that way, if changes are observed within the wetland systems, the augmentation plan could be implemented in relatively short order to alleviate any impacts that might be occurring as a result of the production wells. The success of the augmentation plan depends on the extent of actual drawdown. If actual drawdown approximates Tetratech's predictions, environmental impacts would not be acceptable, and there would not be reasonable assurance that the augmentation plan would be sufficient to mitigate the environmental impacts. If drawdown is of the magnitude simulated in the City’s MODFLOW model, reasonable assurance was given that, if needed, the avoidance and minimization plan developed for the Area IV Wellfield would be capable of offsetting any adverse changes in wetlands and other waters detected through the environmental monitoring plan. If the City pumps not more than 0.75 mgd, the avoidance and minimization plan developed for the Area IV Wellfield probably would be unnecessary but certainly would be capable of offsetting any adverse changes in wetlands and other waters that would be detected through the environmental monitoring plan. If unanticipated environmental harm occurs due to excessive actual drawdowns, and the harm cannot be avoided either by the augmentation plan or by altering the pumping schedule, or both, the District can revoke all or part of the permit allocation under “Other Condition” 23. This ability gives reasonable assurance that no unacceptable environmental harm will occur even if actual drawdown approximates Tetratech's predictions. Saltwater Up-coning and Intrusion Predicting saltwater movement towards the production zone of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable saltwater intrusion. Initially, BFA prepared and submitted solute transport simulations using an analytical model known as the “UPCONE Model.” The District initially accepted the submission as providing reasonable assurance to support the District's initial TSR. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable saltwater intrusion based on the "UPCONE Model." As indicated, supra, Miami Corporation's petition was scheduled for a final hearing in June 2005, but the hearing was continued until February 2006. As the case proceeded towards a final hearing in February 2006, the City not only turned to SDI to develop the numerical MODFLOW model, it also turned to SDI to develop a numerical solute transport model that would couple the MODFLOW groundwater flow equations with advection dispersion solute transport equations to simulate the movement of variable density saline groundwater in response to stresses. In addition to the initial boundary conditions, aquifer parameters and stresses specified for a groundwater model, a solute transport model requires solute parameters such as chloride concentrations, dispersivity and effective porosity. SEAWAT is a solute transport model code that combines the MODFLOW, which provides the groundwater flow component, with the MT3DMS code, which provides the mass transport component. When coupled with MODFLOW, the MT3DMS code tracks the movement of variable density water and performs internal adjustments to heads in the flow model to account for water density. Like MODFLOW, SEAWAT is capable of simulating the important aspects of the groundwater flow system, including evapotranpiration, recharge, pumping and groundwater flow. It also can be used to perform both steady-state or transient simulations of density- dependent flow and transport in a saturated zone. It was developed in the late 1990s and is rapidly becoming the standard for solute transport modeling throughout the United States. It is used by many water management agencies in the State of Florida. Initially, SDI used SEAWAT version 2.1 to simulate movement of saline water towards the Area IV Wellfield. The first such simulation was prepared in March 2006 using manually- adjusted head values along the eastern model boundary. It incorporated SDI's March 2006 MODFLOW model. The District, in consultation with Dr. Huyakorn, required SDI to perform what was termed a "sensitivity run" with reduced chloride concentrations in the eastern boundaries (5,000 mg/l versus 19,000 mg/l) to better match actual measurements recorded in wells in the vicinity. In April 2006 SDI prepared and submitted those simulations. After reviewing the March and April 2006 SEAWAT 2.1 simulations, Petitioners' consultants criticized the manner in which starting chloride concentrations in the vicinity of the Area IV Wellfield were input into the models. In those models, SDI had input initial chloride concentration at 50 mg/l throughout the depth of the UFAS. The model was then run for 100 years with no pumping to supposedly arrive at a reasonable starting chloride concentration for the UFAS. Then, the model was run for 25 years with pumping at 2.75 mgd. However, the initial chloride concentrations at the beginning of the pumping run still did not comport well with actual measurements that were available. After Petitioners raised the issue of the starting chloride concentrations assigned to the UFAS in SDI's March and April 2006 SEAWAT 2.1 runs, the final hearing was continued until September 2006 to give Petitioners time to complete discovery on those models (as well as on SDI's March 2006 MODFLOW model, as discussed supra). During a deposition of Dr. Huyakorn in July 2006, he recommended that the District require SDI to perform another simulation (also termed a "sensitivity run") using starting chloride concentrations more closely comporting with known measurements. (There also were some changes in the constant chloride concentrations that were part of the boundary conditions on the western side of the model domain.) This resulted in SDI's early August 2006 SEAWAT 2.1 simulation of 15 years of pumping at 2.75 mgd. Petitioners also criticized the City for not using a newer version of SEAWAT, called SEAWAT 2000, as well as for using chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). (SEAWAT 2.1 required input of TDS, not chlorides; SEAWAT 2000 allowed chlorides to be input. Not until the last day of the final hearing was it pointed out by Dr. Huyakorn that using chlorides instead of TDS caused SDI's SEAWAT 2.1 simulations to over- predict saltwater intrusion.) As a result of Petitioners' criticisms, the City had SDI re-run both the April and early August SEAWAT 2.1 models in late August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.") Because the SEAWAT 2000 simulations would be time- barred from use in the City's case-in-chief under pre-hearing requirements, and whether they could be used in rebuttal could not be determined at that point in time, the City requested another continuance, this time until December 2006, to give Petitioners time to discover the SEAWAT 2000 model simulations. During Petitioners' discovery of SDI's August SEAWAT 2000 model simulations, it came to SDI's attention that SDI was not calculating mass outputs from the model correctly. Those errors were corrected by SDI in September 2006. SDI's corrected August 2006 SEAWAT 2000 simulation predicted that, after 15 years of pumping at 2.75 mgd, the chloride concentration in the Area IV production wells would increase from 54 mg/l to 227 mg/l. After the 15-year pumping run, SDI's corrected August 2006 SEAWAT 2000 simulation predicted that the chloride concentration in several of the southernmost production wells would exceed 250 mg/l. At 17.5 years of the pumping run simulation, the simulation predicted that the entire wellfield would have chlorides in excess of 250 mg/l. That prediction does not, however, mean the chloride concentration in these wells will exceed 250 mg/l in actual operation. The SDI model contains several conservative assumptions that magnified the potential chloride concentrations in those wells. First, it was assumed all the production wells would be drilled to 250 feet below land surface, while the City will likely drill the southernmost wells to a shallower depth. Additionally, the wellfield production rate used in the model was not optimized for water quality. Finally, the model was not set up to simulate a wellfield operation plan that turned wells on and off based on the saline water monitoring plan. For the sake of simplicity, the model assumed that all the wells would operate 24 hours a day, 7 days a week, for the entire 15 year period. Petitioners continued to maintain for several reasons that SDI's SEAWAT models do not provide reasonable assurance that operation of the Area IV Wellfield will not result in unacceptable saltwater intrusion. Chlorides versus TDS Petitioners criticized SDI's corrected SEAWAT 2000 model for still not inputting chlorides correctly. While SEAWAT 2000 allows the input of chlorides instead of TDS (and input of chlorides instead of TDS is recommended since chloride is a more stable chemical than some of the other components of TDS), they must be input correctly. However, while Petitioners demonstrated that the chlorides were not input correctly, causing the model to under-calculate fluid density, Dr. Huyakorn clarified in rebuttal that under-calculating fluid density caused SDI's SEAWAT 2000 models to over-predict saltwater intrusion into the wellfield. Starting Chloride Conditions Petitioners continued to question the representation of initial chloride concentrations in the SEAWAT models. SDI's SEAWAT models included multiple vertical grid layers to represent conditions better than the layering used in the MODFLOW set-up. The SAS was represented by layer 1, the ICU by layer 2, the UFAS by layers 3 through 14, the MCU by layer 15, and the LFAS by layers 16 and 17. SDI used a chloride concentration of 0 mg/l for the SAS and ICU in its August 2006 SEAWAT model, which probably does not represent the actual initial condition but is probably close enough since the SAS is recharged by rainfall that typically has very low (1 to 2 mg/l) chloride levels. SDI used a chloride concentration of 2,500 mg/l for the MCU and a chloride concentration of 5,000 mg/l for the LFAS in its August 2006 SEAWAT model, which are reasonable initial chloride values for the Area IV Wellfield. To develop the initial chloride concentration conditions of the UFAS for its August 2006 SEAWAT model, SDI first plotted the available water quality data (63 well-data points) on a map of the Area IV Wellfield area. After examining the distribution of the data, SDI divided the UFAS into two layers to represent the upper UFAS (above –200 feet NGVD) and the lower UFAS (below –200 feet NGVD). Then, using various scientific studies containing chloride concentration maps, groundwater recharge/discharge maps (recharge indicating an area is more likely to have low chlorides in the UFAS and discharge indicating an area is more likely to have high chlorides), and maps showing the shape and extent of the freshwater lens in the area, plus SDI’s own knowledge of groundwater flows and expected higher chloride concentrations along the coast and St. Johns River, SDI used scientifically accepted hand-contouring techniques to represent the initial chloride concentration conditions of the upper and lower UFAS on maps. SDI’s two hand- contoured chloride concentration maps were reviewed and accepted by the District’s experts and reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield. Using the two hand- contoured chloride concentration maps, SDI input the chloride concentration values from those maps into its August 2006 SEAWAT model. The chloride concentration values from the upper UFAS map were input into layers 3 through 7 of SDI’s August 2006 SEAWAT model. The chloride concentration values from the lower UFAS map were input into layers 11 through 14 of SDI’s August 2006 SEAWAT model. SDI input the average of the chloride concentration values from the upper and lower UFAS layers into the middle UFAS (layers 8 through 10). It is appropriate to average the chloride values between the upper and lower UFAS in the Area IV Wellfield because the saline water interface is not that sharp and occurs near the bottom of the UFAS (unlike conditions 11 miles to the south). Petitioners accuse SDI, the City, and the District of ignoring unfavorable chloride data in setting up its August 2006 SEAWAT 2000 model. The evidence was that all chloride data was considered and evaluated. Mr. Davis and the District's experts did not rely on the 450 mg/l chloride packer test measurement taken from the interval between 270 and 295 feet at Test Site 3 in preparing the contour maps of the UFAS because the chloride measurement was deemed inaccurate because the sodium to chloride ratio is out of balance. Mr. Davis and the District's experts did not utilize the 2,336 mg/l and 2,717 mg/l chloride concentration packer test measurements at 442-500 feet below land surface at Test Sites 1 and 3 to prepare the chloride contour maps for the UFAS because they believed these measurements from the MCU. Mr. Davis and the District's experts deemed it inappropriate to utilize a 845 mg/l chloride value reported for Test Site 2 to prepare the chloride contour for the lower portion of the UFAS because this sample was collected at just 210 feet below land surface and because a 500 mg/l contour line separates a 882 mg/l measurement at Test Site 1 from a 134 mg/l measurement at Test Site 3. The decision not to include the Test Site 2 data also is supported by the particle tracking modeling prepared by the Petitioners and the City using the groundwater component of the SDI SEAWAT model and the TetraTech model, which show that water from Test Site 2 will not enter the Area IV production wells for at least 100 years with pumping at 2.75 mgd. The chloride contour maps developed by Mr. Davis and the District experts were consistent with previous studies conducted by the USGS and the District in the region. For example, the chloride contours shown on City Exhibit 142 for the upper portion of the UFAS are generally consistent with Figure 35 of the 1990 USGS Report by Charles Tibbals and Figure 15 of the 1999 District Report by Toth and Boniol. The two chloride contour maps developed by Mr. Davis and the District's experts are a reasonable representation of the existing water quality of the UFAS in the region of the Area IV Wellfield based on the available data. Mr. Davis used the 882 mg/l chloride concentration packer test measurement from the interval between 331 and 400 feet at Test Site 1 as the starting chloride concentration in four grid cells at the bottom of the UFAS, which Petitioners' experts referred to as a "pinnacle" or "column," that were assigned a chloride value of 700 mg/l. While the representation may not have been realistic, and the "pinnacle" or "column" quickly "collapses" when the model begins to run, the representation was a concession to the existence of the datum even though it appeared at odds with water quality collected from a packer test at Test Site 3 at the same depth interval, which was much fresher. District staff agreed with Davis’ approach to representing the saltier packer test measurement from Test Site 1. The initial chloride concentrations developed for the UFAS by Mr. Davis and District staff are not inconsistent with the water quality data collected by the Petitioners’ consultants from Long Lake. The lake is located in an area of the map where the chloride concentration in the UFAS, which discharges into the lake at that location, is between 1,000 and 5,000 mg/l. Mr. Davis decided not to use 2,000 mg/l to represent the bottom layer of the UFAS even though the bottom packer tests performed at Test Sites 1 and 3 showed an average value of 2,000 mg/l at the approximate boundary of the UFAS and the MCU. Instead, he decided to associate this chloride concentration with the MCU because even if the packer had penetrated a portion of the UFAS, he did not believe the measurement was representative of static water quality conditions at that depth. The packers had been pumped for over 4 hours at 25 gpm at Test Site 1 and over 4 hours at 85 gpm at Test Site 3, which could have doubled or tripled the static chloride concentration. As was later shown in sensitivity runs by Petitioners' expert, Dr. Guo, if SDI had incorporated the 2,000 mg/l value at the bottom of the UFAS, the model simulation would have shown unrealistically high initial chloride concentrations in the production wells at the start of pumpage when compared to the water quality measured during the APTs conducted at Test Sites 1 and 3. (While only one well was pumping at a time, versus the 15 in the model simulations, the single APT well was pumping at approximately three times the rate of the 15 wells in the model simulation.) Based on all the evidence, it is found that the chloride concentrations used in SDI’s August 2006 SEAWAT model reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield and were properly input into that model using an appropriate method. Location of the MCU Related to the last point is Petitioners' claim that the top of the MCU (i.e., bottom of the UFAS) is incorrectly represented in SDI's SEAWAT models at 450 feet below sea level (approximately 425 feet below land surface). They point to literature values indicating that the depth to the MCU is up to 150 feet greater. However, these reports did not include site- specific data or test wells in the vicinity of the Area IV Wellfield or in northern Brevard County. It was reasonable to consider and rely on site-specific information regarding the depth to the MCU in this case. BFA determined the approximate location of the MCU by examining cuttings collected during drilling at APT well sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. Based on the site-specific information obtained, the depth to the MCU was determined to be approximately 450 to 475 feet below land surface or –425 to -450 feet NGVD. The lithologic log for well site 1 indicates the presence of gray/tan limestone between 450 to 460 feet below land surface and light/gray limestone and dolomitic limestone from 460 to 470 below land surface. The lithologic log for well site 3 indicates the presence of tan dolomitic limestone from 450 to 460 feet below land surface and tan limestone and dolomitic limestone from 460 to 470 feet below land surface. According to Petitioners' own expert, Dr. Missimer, the change to a mixture of limestone and dolomite is evidence of the MCU. After examining the video log for well site 1, Dr. Missimer noted a “lithologic change” at 477 feet below land surface (while still disputing BFA's conclusion that the MCU started there.) One characteristic of the MCU is a lower resistivity. At well site 1, a reduction in resistance occurred at approximately 470 feet below land surface. Another characteristic of penetrating the MCU is decrease in flow. The flow meter log for well site 1 suggests a decrease in flow at approximately 450 feet below land surface. On the other hand, it also is true that wells drilled completely into the MCU probably would not produce more than approximately 5 gallons per minute (gpm), whereas the packer test at the bottom of Wellsite 1 was yielding 25 gpm, and the packer test at the bottom of Wellsite 3 was producing 85 gpm. It is possible that the bottom packers were open to both the UFAS and the MCU, which could explain the higher flows. Petitioners maintain that BFA stopped drilling too soon (500 feet below land surface, or 475 feet below sea level) to ascertain the actual depth to the MCU. While it is true that drilling deeper would have made BFA's determination as to the depth to the MCU more convincing and certain, BFA's approximation of the depth to the MCU was reasonable for purposes of SDI's SEAWAT model. To the extent that BFA might have been wrong on the depth to the MCU, there was no convincing evidence that the error would have made SDI's SEAWAT model results unreliable. To the contrary, Dr. Huyakorn testified that, even if SDI put the MCU 75 feet too high, the label given to the interval is not critical to the reliability of the modeling results. More important are the parameters for transmissivity and leakance assigned to aquifers and confining units. Dr. Huyakorn testified that, given the aquifer parameters assigned to the intervals, SDI's SEAWAT modeling results would be reasonably reliable. Saline Movement Impacts As indicated, once chloride concentration changes are predicted with reasonable assurance, both interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, which relate to public interest, must be evaluated. Significant saline water intrusion is defined as saline water encroachment which detrimentally affects the applicant or other existing legal users of water, or is otherwise detrimental to the public. (Rule 9.4.2, A.H.). Saline water may encroach from upconing or the vertical movement of saline water into a pumping well, and it may encroach laterally to the well from a saline waterbody like the ocean. The proposed use associated with the four surficial aquifer extraction wells is so minimal that it clearly would not cause saline water intrusion or harm the quality of this proposed source of water. The focus of attention is the production wells. The evidence was sufficient to provide reasonable assurance that the proposed consumptive use from the Area IV Wellfield will not cause significant saline water intrusion; further aggravate currently existing saline water intrusion problems; induce significant saline water intrusion to such an extent as to be inconsistent with the public interest; or harm the quality of the proposed source of water. First, the long-term constant rate pump tests, which were conducted as part of the APT, give some indication of the potential for saltwater intrusion. While only one well was pumping during the tests, water quality did not degrade at pumping rates that far exceeded what would be approved as part of the proposed permit. During four-day pump tests in which the wells at sites 1 and 3 were pumped at approximately 1 mgd, chlorides never exceeded approximately 74 mg/l. Second, while (as with drawdown predicted by the groundwater flow modeling) saltwater movement predicted by the City’s SEAWAT simulations is not a certainty, the simulations gave reasonable assurance that the requested allocation could be withdrawn from the Area IV Wellfield without excessive changes to water quality (specifically chlorides) and that there is an adequate thickness of freshwater at the Area IV Wellfield that could supply the requested allocations of water for 15 years without saline water intrusion, especially since it is unlikely that a number of the wells will actually be constructed to the 250-foot depth assumed in the model, particularly as one moves south along the railroad right-of way. Third, it is even more unlikely that saltwater intrusion will occur before the proposed permit expiration in 2010. Due to the time required to construct the facility, it is anticipated that the Area IV Wellfield will become operational in 2009. Assuming the City seeks to renew the permit, there would be more information on saltwater intrusion for the District to consider on permit renewal. Since the City provided reasonable assurance as to its proposed withdrawals from Area IV, there clearly is reasonable assurance that withdrawal of not more than 0.75 mgd from Area IV would not result in significant saline intrusion. The TSR includes proposed “Other Condition” 11 which requires the installation of saline monitor wells. The spatial distribution of these wells is such that the beginning of water quality degradation or saltwater intrusion, either from upconing or lateral intrusion, would not occur without it being detected by these wells. In addition to these monitor wells, proposed “Other Condition” 14 requires water quality samples to be collected from each production well. These wells are to be sampled quarterly for a suite of parameters, including chlorides. “Other Condition” 25 is proposed as a “safety net” should unanticipated saltwater intrusion occur. If any production well shows a concentration of 250 mg/l chlorides, then this proposed condition would prohibit further use of the well until the chloride concentration drops. If the monitoring shows a chloride concentration in a production well of 200-to- 249 mg/l, the well will be placed on restricted use. A production well may be placed back into regular service once the chloride concentration in the well is below 200 mg/l. Other Issues Other issues raised and maintained by Petitioners in this case include: whether the City has provided reasonable assurance that it owns or controls the property upon which the proposed wellfield will be located; whether the Area IV Wellfield is an economically feasible option; whether the City has provided reasonable assurance that it will be able to implement the project before the expiration date of the proposed permit; whether the proposed CUP is inconsistent with the District's designation of Priority Water Resource Caution Areas; whether the proposed CUP constitutes an impermissible modification of the existing CUPs for Areas II and III; and whether the City failed to pay the appropriate permit fee. Ownership or Control The City has obtained an easement from the Florida East Coast Railway (FEC) to use FEC right-of-way for the City's proposed production wells. It does not yet have ownership or control of land needed for all wetland and saline monitoring sites, or for wetland augmentation if necessary, but intends to acquire the right to use all land needed through negotiation or exercise of eminent domain. Petitioners contend that the FEC easement is insufficient for several reasons: the easement is "without warranty or covenants of title of any kind"; it is impossible to define the precise boundaries of the easement because the easement is defined in terms of distance from the center of a railroad bed that existed in 1866 but no longer exists; and the precise location of proposed production wells is not definite. While the easement is "without warranty or covenants of title of any kind," the evidence is that, if contested, the precise boundaries of the easement would be difficult but not necessarily impossible to define. It is reasonable to anticipate that at least Miami Corporation will contest the legality and extent of the FEC easement. Petitioners allege that there is confusion about the location of the proposed wells because some well locations identified in the City’s permit application did not match the coordinates assigned to certain production wells on the District’s on-line database. Actually, there is no confusion regarding the location of the wells; the well locations identified in the permit application were the well sites used for modeling purposes and for review of the application. District staff explained that the well site locations identified in the District’s database would be finalized after the wells are constructed and the exact locations have been identified using GPS technology. Contrary to Petitioners' contentions, the District’s rules do not require that an applicant own the property where the proposed production wells or monitoring wells are to be located. The District has issued many CUPs where either the subject property or the property associated with the monitoring requirements of the permit are not owned by the applicant. Recent examples include the CUPs for Orange County Utilities and the Orlando Utilities Commission. This makes sense when the applicant has the power of eminent domain or some other credible means of obtaining necessary ownership or control, such as an option contract. The District’s permit application form has a section that requires the applicant to identify who owns or controls the land on which the facility will be located. The District uses this information for noticing and contact information. Contrary to Petitioners' contentions, this section of the permit application form is not intended to create a substantive permitting standard requiring property ownership before a consumptive use permit can be issued. Petitioners argue that proof of ownership or control is necessary to determine whether a drawdown from a proposed water use will adversely affect stages or vegetation on lands other than those owned, leased, or otherwise controlled by the applicant. However, the evidence was that these impacts can be assessed based on the facts of this case. The City's need to eventually obtain ownership or legal control to exercise the rights granted by the proposed CUP may be problematic in this case and is a factor to be considered in the next two issues raised and maintained by Petitioners: whether the Area IV Wellfield is an economically feasible option; and whether the City has provided reasonable assurances that its project can become operational before the expiration date of the proposed permit. But it is not a reason to automatically deny the City's proposed CUP. Economic Feasibility Petitioners argue that the proposed Area IV Wellfield is too expensive and that the expense should be a factor in deciding whether it is in the public interest. But cost to the City is not a factor in determining whether to issue the CUP proposed in this case. Statutes and rules cited by Petitioners on this point do not apply to this CUP determination. See Conclusions of Law 277-279, infra. Implementation Before Expiration Date Litigation of a case filed by Miami Corporation to contest the legality and extent of the City's FEC easement will add to the (cost and) time necessary to implement the project. This additional time was not specifically taken into account by the City in estimating the time it would take to implement the project. The (cost and) time for litigation of the legality and extent of the City's FEC easement could be spared by exercising eminent domain instead. That probably would add to total the cost of eminent domain but might not add appreciably to the time necessary for acquisition of required ownership or control. In an imprecise way, the time for eminent domain proceedings necessary to gain ownership or control of land for monitoring sites and wetland augmentation (without time for litigation of a contest over the legality and extent of the FEC easement, or for using eminent domain instead) was factored into the time estimated for implementation of the project. With this rough estimate, the evidence was that the project could be expedited and completed in 33 months from issuance of a CUP. It is possible but not probable that the project could be implemented in less than 33 months. It is possible and more probable that it will take longer than 33 months to implement the project. In a worst case scenario, it could take as much as 59 months complete the project. But 33 months is a reasonable, if optimistic, estimate (without time for litigation of the legality and extent of the FEC easement, or for using eminent domain instead). As found, the proposed CUP expires at the end of 2010. Given the 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration. Given that estimate, it would be in operation for six months before expiration. It is likely that the City will apply to renew both the existing CUP for Areas II and III and the proposed CUP for Area IV. It appears from Petitioners' Response to the other PROs that one purpose for their arguments that the proposed CUP for Area IV cannot be implemented before its expiration is to buttress their arguments, already addressed, that there is no need for the proposed CUP for Area IV. Priority Water Resource Caution Area Designation As part of its water supply planning process, the District designates priority water resource caution areas. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate to supply water for all existing legal uses and anticipated future needs and to sustain the water resources and related natural systems. The area surrounding the Area IV Wellfield was designated as a priority water resource caution area in the District’s 2003 Water Supply Assessment and 2005 Water Supply Plan based on groundwater modeling prepared by District planning staffing using the ECF and Volusia County Regional Models. The fact the Area IV Wellfield is located in a priority water use caution area does not mean a consumptive use permit cannot be issued for this facility. In fact, over one- third of the District is located within a priority water resource caution area, and permits continue to be issued in those areas. Rather, the essence of the designation is the recognition of a concern, based on the regional models, that the proposed consumptive use of water might violate the wetland and lake constraints and that water resources other than fresh groundwater will be needed to supply the expected need for water in the area and in the District over the next 20 years. That does not mean that no additional groundwater withdrawals should be permitted in a designated area. Rather, it means that other resources should be developed and used along with whatever remaining additional fresh groundwater can be permitted. It is not an independent reason, apart from the permitting criteria, to deny the City's application. Impermissible Modification of Existing CUP Petitioners contend that the proposed CUP for Area IV includes an impermissible modification of the existing CUP for Areas II and III because “Other Condition” 5 limits average annual withdrawals from the Area II, III, and IV Wellfields, combined, to 5.79 mgd in 2009 and 6.01 mgd in 2010. (As indicated, the limitations would have to be reduced to no more than 5.2 mgd based on the more reasonable projected need.) However, the City’s current CUP for the Area II and III Wellfields expires in February 2008, which is before the Area IV Wellfield would become operational, so that "Other Condition" 5 will have no practical effect on the existing CUP for Areas II and III. In essence, "Other Condition" 5 serves to advise the City that it should not view the allocation for the Area IV Wellfield in addition to the City’s existing allocations for the Area II and Area III Wellfields and that any renewal of the existing CUP for Areas II and III will have to take the Area IV allocation into account. Appropriate Permit Fee Petitioners have alleged that the City has not paid the correct permit processing fee. In March 2001, the City paid the District $200 when it submitted its initial permit application to modify its existing CUP. In May 2005, the City paid the District an additional $800 when it amended its application and withdrew its request to modify its existing permit. All required permit processing fees have been paid for this CUP application 99052. Miscellaneous As to other issues raised by Petitioners in the case, the evidence did not suggest any danger of flooding, any proposed use of water reserved by rule for other uses, any effect on any established minimum flows or levels, or inadequate notice. Standing As found, Miami Corporation owns property immediately adjacent to the proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and interfere with their legal use of groundwater, and that saline intrusion from the proposed CUP would degrade the water quality of the UFAS resource which they use for potable water. As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District issue the City a CUP for Area IV as provided in the second revised TSR, except for a lower water allocation at this time, namely: 0.75 mgd on an annual average basis, with appropriately lower allocations on the other bases in the TSR, and with a combined annual average rate for Areas II, III, and IV in "Other Condition" 5 of 5.2 mgd for 2009 and 2010 instead of 5.79 mgd in 2009 and 2010, and appropriately lower combined maximum daily rates for Areas II, III, and IV in "Other Condition" 9. Jurisdiction is reserved to hear and rule on the pending motions for sanctions if renewed no later than 30 days after entry of the final order in this case. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 31st day of July, 2007.
Findings Of Fact Respondent/Applicant, North Orlando Water and Sewer Company, filed an application on August 11, 1981, with Respondent, Department of Environmental Regulation, seeking a permit to authorize the construction of sewage effluent disposal ponds in Winter Springs, Seminole County, Florida. On August 16, 1981, the Department advised the Applicant that additional information was required. This information was supplied by Applicant on September 11, 1981. After reviewing the application and supplemental information, the Department determined that Applicant had provided reasonable assurance that the proposed percolation ponds would not adversely affect waters of the State and thereafter issued Permit No. DC59-46435 on September 22, 1981, authorizing the construction of the requested activity. Petitioners are owners of the property on which one of the disposal ponds is to be constructed. On June 12, 1981, Applicant instituted condemnation proceedings in Circuit Court for Seminole County under Chapters 73, 74 and 361, Florida Statutes, seeking to condemn the property so that the facilities could be constructed. The suit remains pending until all necessary permits from the Department are acquired by Applicant. The parties agree that based on plans, test results and other information, the construction of the proposed installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. The permit was issued without formal public notice. However, it falls under the class of permits enumerated in Rule 17-1.62(3)(a), Florida Administrative Code. That rule makes publication of a notice discretionary on the part of the Department, and no abuse of discretion was shown. Item D(i) on page 7 of the application requires that the Applicant "[i]ndicate the number of potable water supply wells within 500 feet of effluent disposal area, the depths of these wells and their approximate distances from the disposal area." Applicant answered "None". There are no public potable water supply wells within 500 feet of the effluent disposal area. There are several private potable water supply wells within 500 feet of the pond but adequate buffer zones between these private potable water supply wells and the actual effluent disposal area exist. Moreover, Petitioners' expert witness conceded that seepage would be minimal, should not be a concern, and the failure to list the private wells on the application had no effect on the substantive merits of the application. Applicant construed the term "potable water supply wells" to mean only public wells since DER has no jurisdiction over private wells. For this reason, it answered the question in the manner that it did. The Department concurs in this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Permit No. DC59-46435 be issued to Applicant, North Orlando Water and Sewer Company. DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).
Findings Of Fact General SFWMD is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. Acme is a dependent special district of the Village of Wellington, a municipality of the State of Florida. Polo is a Florida corporation and a developer in the Village of Wellington, Palm Beach County, Florida, including a 79-acre parcel of real property known as Peacock Pond, and other undeveloped property that are part of the subject of this permitting proceeding. Wellington Country Place Property Owners Association, Inc. (POA) is the property owners association for WCPPUD. Permit History 1978 Permit In 1978, SFWMD issued to Acme the original backbone SWM permit for approximately 18,000 acres, including primary drainage Basins A (to the north) and B (to the south). Pierson Road, which runs east/west, is the boundary between the two basins. (The backbone C-23 canal parallels Pierson Road to its immediate north.) Acme Basin A discharges to the C-51 canal, which flows east to the Atlantic Ocean. Acme Basin B, which consists of approximately 8,680 acres, discharges to the Loxahatchee National Wildlife Refuge (Refuge) through two Acme pump stations. The Refuge is part of what is now designated the Everglades Protection Area. The 1978 backbone permit, which modified a still earlier permit, established lower water control elevations in Basin A, which was being developed for urban use, than in Basin B, which was planned to remain largely in agricultural use. Under the 1978 permit, the maintained (regulation) stage in Basin A was set at 11' above mean sea level (msl) with discharge beginning at 12' msl during the wet season and 12' msl with discharge beginning at 13' msl during the dry season. The maintained stage in Basin B remained at 13' msl in both the wet and dry season. Under the 1978 permit, it was anticipated that routing surface water runoff in Basin A through canals and retention lakes would provide the water quality treatment required under the criteria in effect at the time (including a requirement to provide half an inch of detention over the entire Basin A for water quality treatment purposes.) At the time, planned residential development in the extreme southwest corner of Basin B was anticipated to generate only limited quantities of runoff due to the nature of typical development in 5-acre parcels; quality of runoff was expected to be better than from previous agricultural use. Presumably because there would be no change under the 1978 permit, water quality treatment in the remainder of Basin B was not addressed. 1979 Permit By 1979, Acme requested a permit modification for development of the Wellington WCPPUD, which is located entirely within Acme Basin B. The PUD's northern boundary is Pierson Road; the western boundary is the backbone C-2 canal; and the eastern boundary is the backbone C-6 canal. The north/south backbone C-4 canal divides the western third of the PUD from its eastern two-thirds; it also forms the western boundary of the area known as Peacock Pond. The southern boundary of the PUD generally follows the east/west backbone C-24 canal.2 The 1979 permit modification authorized construction and operation of water management facilities in portions of WCPPUD, including a 79-acre pumped retention area (which was to become known as Peacock Pond), pump station, and control structure. Under the 1979 permit, the maintenance stage (water control) elevation within WCPPUD only was set at 12' National Geodetic Vertical Datum (NGVD) (essentially, the same as msl) in the wet season and 13' NGVD in the dry season. The minimum road and finish floor elevations were established at elevation 16' and 17' NGVD, respectively. Without regard to seasonality, the retention area pump station was to begin operation when a stage of 13' NGVD was reached in the adjacent C-4 canal and was to discontinue operation when the system was drawn down to elevation 12' NGVD. The 1979 permit used the 79-acre area known as Peacock Pond as its central water quality feature. Runoff from WCPPUD was to be collected in roadside swales within road right-of-ways and routed by storm sewer inlets and pipe to either a proposed 12-acre lake or one of the collector swales or canals connected to the Peacock Pond site. The 1979 permit contemplated use of the Peacock Pond site as a "retention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then slowly lets the water out. In the 1979 permit, Acme was required to construct a berm or dike around the 79-acre area to create an above-ground impoundment to serve as the retention area. A pump was required to be installed at the northwest corner of Peacock Pond to pump water from the adjacent C-4 canal into the retention area. The berm or dike was to detain water on the site until it reached the level of a gravity flashboard riser outfall structure at the southwest corner of the site, which would be set at 15' NGVD and would return the water to Acme's C-4 canal just downstream of a broad-crested weir, which would be set at 14' NGVD. Additional discharge from the system would be provided by two 72-inch gravity-flow flashboard risers with crest elevation 14' NGVD-- one to the C-4 canal and the other to the C-6 canal. Water discharged from the system would flow south and west through Acme's system of Basin B canals, eventually discharging to the Refuge through the two pump stations to the south and southwest. During a rise in stage in the C-4 from 13' to 14' NGVD, the pump station in the northwest corner of Peacock Pond would continue filling the retention area. Considering pumped inflow of 4000 gallons per minute (gpm), the retention area would take 3.3 days to reach a peak stage of 16'. At that stage, 58 acre-feet of water would be stored within the retention area. SFWMD calculated that Peacock Pond would treat approximately 200 million gallons of water a year in this way. SFWMD and Acme have taken the position in this case that the sole purpose of Peacock Pond in the 1979 permit was to serve as a water quality treatment area for the Wellington WCPPUD. It is true that the 1979 permit contemplated that flood protection for Basin B would be provided through use of the two pumps discharging into the Refuge (Pump #1 capable of pumping at the rate of 100,000 gpm, and Pump #2 capable of pumping at 120,000 gpm). But, as subsequent events showed, the Peacock Pond retention area was part of an overall SWM system for WCPPUD that maintained water stage elevations there at a lower level than in the rest of Basin B. In other words, while designed primarily to provide water quality treatment, and not designated a flood control facility, it had some residual flood control benefit within WCPPUD. Actual Operation After 1979 Permit Although Peacock Pond was critical to the functioning of the SWM system for WCPPUD and Basin B, SFWMD never obtained from the owner the legal right to use it for SWM purposes. From 1979 to 1986, SFWMD was advised that the Peacock Pond facility was in substantial conformance with the permitted conditions. But some time after property, including Peacock Pond, was transferred to Landmark Land Company of Florida, Inc., the pumps in the northwest corner of Peacock Pond stopped being used regularly.3 Instead, Acme water control structure 115 (a 48-inch culvert and 72-inch flashboard riser which replaced the broad- crested weir in the C-4 canal through a 1982 permit modification) and structure 117 (discharging to the C-6 canal) were opened so that water levels in Wellington Country Place equalized with the surrounding Acme Basin B, which was controlled by the two pump stations discharging to the Refuge to the south and southwest. The evidence indicates, for at least the last ten years, the Basin B pumps have been operated to maintain water elevations of 12' NGVD in the wet season and 13' NGVD in the dry season--the same as for the County Place PUD under the 1979 permit. Under this water elevation control regime, flooding within WCPPUD was not a problem, but the water quality treatment from the Peacock Pond facility required under the 1979 permit was not being realized. The pump operation schedule under the 1979 permit did not specify a "bleed-down" mechanism. As a result, when internal stages exceeded the specified control elevation threshold, both Basin B pumps would be operated at a combined rate of 220,000 gpm until the seasonal water control elevation was again established. This operation did not take full advantage of the nutrient removal capacity of the existing system. 1989 Equestrian Estates Permit Modification In 1989, construction and operation authorization was issued for the Equestrian Estates development located within WCPPUD west of the C-4 canal. Among other things, this modification to SWM Permit No. 50-00548-S included the construction of lakes for use as wet detention ponds and a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal. However, this control structure and its associated culvert were never constructed. Peacock Pond Enforcement Proceedings Around 1997, SFWMD was informed that the Peacock Pond pump was not being operated and initially brought enforcement proceedings against Polo, which had become the owner of the property in 1993, to resume pumping into Peacock Pond. At the time, SFWMD was involved in enforcement proceedings against Polo, as owner, for unauthorized dredging and filling in Peacock Pond, and SFWMD made an incorrect assumption that Polo was the operator of the Peacock Pond facility under the 1979 permit. SFWMD subsequently realized that Acme, not Polo, was the permit holder. When Acme attempted to turn the pumps on again, Polo refused to allow Acme to do so without compensation. SFWMD then brought an enforcement action against Acme for not operating Peacock Pond in accordance with its permit. SFWMD and Acme entered into a Consent Order requiring Acme to operate Peacock Pond and the rest of the SWM system as required by the 1979 permit. Acme subsequently brought eminent domain proceedings against Polo to acquire Peacock Pond and obtained a final judgment, but the compensation required under the final judgment was prohibitive. SFWMD and the Village of Wellington then entered into a Joint Cooperation Agreement, which (among other things) required the Village of Wellington to submit an "application to modify the Peacock Pond Permit and Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond [which] must provide reasonable assurances that demonstrate that the water quality treatment, water quantity and environmental benefits associated with the Peacock Pond Permit are maintained through the modified facility or by other equivalent measures." In the meantime, SFWMD ordered Acme to set control structures 115 in the C-4 canal and 117 in the C-6 canal at 14' NGVD as required by the original 1979 permit. When this was done without operation of the Peacock Pond retention area as also contemplated and required by the 1979 Permit, the water levels caused septic tank problems to some residents in WCPPUD, leading SFWMD to issue emergency authorizations to lower the crest-settings of structures 115 and 117 to 12.5' NGVD. At those settings, water levels in WCPPUD stayed between 12' and 13' NGVD, and there have been no septic tank problems in the last two years. Specifically, measured water levels in the C-4 canal north of control structure 115 generally ranged between elevation 12' NGVD and 13' NGVD from November 2001 through October 2003, with occasional variances above or below due to drought or rain periods. Proposed Modification to Eliminate Use of Peacock Pond On May 12, 2000, Acme filed an application to modify its permit. The primary purpose of this modification was to authorize alternate SWM facilities within Basin B (primarily within WCPPUD) to maintain the water quality treatment function that was assumed would be realized by Peacock Pond in the WCPPUD permit issued in 1979. Additional components of the permit modification are: installation of a 7.8 acre flow through littoral zone within the C-2 Canal for additional cleansing of Acme Basin B water; modification of the pump operation schedule for Basin B; revision of surface water management design requirements for future development within Country Place to include additional lake acreage and littoral zones; elimination of a previously permitted (but not constructed) control structure allowing discharge from Lake No. 5 to the C- 4 Canal so that water from Lake 5 continues to drain through established canals and lakes into the C-4 Canal; modification of existing flashboard riser water control structures 115 and 117 within the C-4 and C-6 Canals to crest elevations of 12’ and 13’ NGVD, respectively, so that water will be detained upstream but water from both the eastern and western ends of the Wellington WCPPUD drain toward and into the C-4 canal during low flow; and an analysis of nutrient (and phosphorus) loading, removal and export from the Country Place system During the application process, Acme submitted detailed water quality calculations analyzing and comparing the 1979 permit, based on the land uses at that time and the anticipated phosphorous loading that would be discharged from the system, and the proposed modification with current land uses and phosphorous loading now anticipated. To support its modification application, Acme recalculated the water quality treatment currently provided by existing lakes--many of which were not planned in 1979--and other water quality treatment features in WCPPUD. Acme's calculations assumed that all land owners of undeveloped tracts in Basin B, including land owners in WCPPUD, wishing to develop their properties in the future will have to provide for adequate water quality treatment or other acceptable alternatives, as required by SFWMD regulations in place at the time the future permit applications are filed. In order to meet those requirements, future developers can either create lakes on their properties, treat their water off-site on properties such as Peacock Pond, or use other equivalent alternatives. In conformance with current SFWMD criteria, Acme’s application only considered and counted as water quality treatment features water bodies with an average width of at least 100' and a size of at least 0.5 acres. SFWMD spent an enormous amount of time reviewing the data and analyses that were submitted. SFWMD then issued numerous lengthy requests for additional administrative and technical information, requiring Acme among other things to provide water level information and perform management calculations. Acme provided necessary calculations to demonstrate that flood levels within WCPPUD would not be affected by the elimination of Peacock Pond as a water quality feature. Acme's calculations demonstrated that the water quality treatment functions currently provided by existing lakes meeting SFWMD's dimensional criteria and by on-site swales, together with the 7.8-acre off-site littoral shelf to be constructed in canal C-2, would be sufficient to replace the water quality treatment functions assumed to be provided by Peacock Pond under the 1979 permit. SFWMD issued a Staff Report on April 29, 2003, recommending approval of the application to modify the SWM permit. SFWMD found that Acme had provided reasonable assurances by Acme that the applicable permit criteria would be met. On May 15, 2003, the SFWMD Governing Board approved the Staff Report to issue a modification to SWM Permit No. 50-00548- S, Application No. 000512-12. Control Elevations and Pump Operation Schedules The proposed permit modification states that there will be a change in the permitted water control elevations and pump operation schedule within Basin B. However, as set out in Finding 17, supra, in actual practice, water elevations throughout Basin B have been maintained at the levels permitted for WCPPUD under the 1979 permit for at least the last ten years, which include the time period after the Peacock Pond pumped retention area stopped being operated as required under the 1979 permit. The proposed modifications essentially would continue the historical operation of the Acme Basin B system during this time period. In essence, the changes in Basin B outside WCPPUD will simply conform the permit conditions to actual conditions for at least the last ten years. For that reason, SFWMD and Acme has referred to modification as being only "on paper." As reflected in Finding 23(e), supra, water control structures 115 and 117 would be modified in association with this permit modification so that structure 115 (located in the C-4 canal adjacent to Peacock Pond) will have a weir crest elevation of 12' NGVD and structure 117 (located adjacent to the C-6 canal) will have a weir crest elevation of 13' NGVD. As a result, when the water level in WCPPUD exceeds 12' NGVD, it would begin to "bleed down" out of structure 115 in the C-4 canal. If the water level in WCPPUD continued to rise and reached 13' NGVD, it would begin to "bleed down" out of the 117 structure in the C-6 canal as well. Under the proposed permit modification, the pump operation schedule would be revised so that no pumping would occur until Basin B stages reached 13' NGVD. Then, the pump rate will average 30,000 gpm, which equates to a "bleed down" discharge of 20 percent of the one-inch detention above 12' NGVD per day. When the stage has been brought down to 12' NGVD, all pumping would cease. During significant storm events, when the internal stages exceed 13' NGVD, the previously permitted peak discharge rate of 220,000 gpm will be maintained. If the pumps are operated as proposed in this modification, the system will be able to take full advantage of its nutrient removal capacity. At the same time, water levels will be maintained within the ranges of historical operation over at least the last ten years. The only difference is that, except for major storm events, water levels will be allowed to "bleed down" at a slower rate. Notwithstanding these facts, Petitioners believe that control elevations in WCPPUD have always been higher than in Basin B, and are concerned that the proposed "on paper" modification is in the nature of a "smoke and mirrors" trick. Petitioners are concerned the proposed modifications will cause additional water to be detained in WCPPUD to the detriment of the equine industry there. But the evidence indicated that the their concerns are not well-taken. Under the proposed modification, there will be one inch of detention over the entire Basin B water management system between the elevations of 12' NGVD and 13' NGVD. This is the same range of elevations established for WCPPUD in the 1979 SWM permit. The calculated detention volume accounts for the volume of water which is physically accommodated in the system between 12' NGVD and 13' NGVD. There is no additional detention created in the WCPPUD system through the proposed changes. The proposed Basin B pump schedule will result in the same range of water table fluctuation as required in the 1979 SWM permit. As Petitioners' witness, Mr. Straub, testified, the system has worked well as operated for the last three years. No significant changes are to be expected as a result of the proposed pump operation schedule changes designed to achieve greater water quality treatment benefits. In combination, the modification of the pump operation schedule for Basin B and the revisions to the WCPPUD system are expected to result in an improvement in flood control with lower flood stages within WCPPUD through a more efficient water management system. Acme has demonstrated that the proposed modifications will not result in a change in actual water control elevations on Petitioners' properties; will not cause water to back up and cause flooding or septic tank problems within WCPPUD; and will comply with Florida Administrative Code Rule 40E-4.301(1)(a), (b), and (c.) The undisputed expert testimony was that Acme gave reasonable assurances that the proposed permit modification will not "lower existing water table elevations." (Emphasis added.) Fla. Admin. Code R. 40E-41.363(4). Equivalent Water Quality Treatment Provided Acme provided calculations comparing the treatment which was assumed to take place within the originally permitted surface water management system of WCPPUD (which included Peacock Pond), the treatment which is currently being provided by the existing system, and the treatment that will be provided under various assumed future scenarios. Acme demonstrated that there will be an equivalent amount of water quality treatment even though the use of Peacock Pond as a water quality retention area is being eliminated. Petitioner did not provide any contrary evidence to show that the removal of Peacock Pond reduced water quality treatment in the system. As a result, reasonable assurances were given that there will be no adverse effect on the quality of receiving waters as a result of this proposed modification. Additional Wet Detention Areas Now Exist Although the 1979 permit required only 12 acres of wet retention ponds, analysis of aerial photographs and existing permits issued after 1979 indicates that 54.4 acres of wet detention lakes meeting current regulatory criteria now exist in WCPPUD. Another 33 acres of existing wet retention areas (including canals) are present but do not meet the minimum width criteria required for wet detention ponds. Approximately another 4 acres meet the dimensional requirements but are not legally encumbered for use by Acme for water quality purposes. For example, Lakes 6 and 8 meet the dimensional criteria but are not platted as water management areas or encumbered by suitable drainage easement. A similar situation exists with Lake 9, which has been assumed to provide wet detention treatment over only 15.41 acres since the northern 2.25 acres of the 17.66-acre lake are outside the platted water management area's footprint. If all lakes, ponds, and canals within WCPPUD were counted for water quality purposes, Acme calculated that there would be enough capacity to treat approximately one inch of runoff from WCPPUD. Not counting the water bodies not meeting dimensional requirements or not legally encumbered, but assuming that future development within WCPPUD will have 13% water bodies qualifying for use as wet detention areas under current criteria, Acme calculated that there would be capacity to treat one inch runoff from current and future development within WCPPUD. (Instead of 13 percent qualifying wet detention areas, alternative equivalent water quality treatment also could be used to meet applicable water quality treatment criteria.) Planted Filter Marsh Located in C-2 Canal Provides Additional Water Quality Treatment Phosphorus loading can be described as the pounds of phosphorus which are being discharged to a water body through storm water runoff. In WCPPUD today, phosphorous loading is higher than originally anticipated and calculated when the 1979 Permit was issued due to differences in the way the land has been developed over the last 20 years. The main difference is more equestrian activity and its higher phosphorus loading than anticipated in 1979. Acme submitted detailed phosphorus loading information which is included in Exhibits 7A through 7E to the Staff Report (SFWMD Exhibit 5), comparing what the original permit anticipated to what is happening today, and what would happen with the modified system. The detailed information is summarized on Exhibit 8 to the Staff Report. To address phosphorus loading, the proposed project includes construction of a 7.8-acre filter marsh within a portion of the Acme C-2 Canal right-of-way located within Basin B about a half mile west of WCPPUD. The project will extend from the intersection of the C-2 and C-23A canals southwards approximately 6,800'. The filter marsh will treat water flowing south through the C-2 canal prior to reaching the Acme pump stations discharging into the Refuge. The existing Acme C-2 canal will be expanded to a width of approximately 80' to 130' and will incorporate a meandering 40' to 60' wide constructed and planted littoral shelf at elevation 10.0' NGVD. Adjacent to the proposed littoral zone, a 25' wide section of the canal will be excavated to an elevation of approximately 6.0' NGVD. This deeper section is proposed to prevent any reduction in hydraulic capacity of the existing C-2 Canal. The 7.8-acre area will be planted with native wetland vegetation on three centers. It is anticipated that the planted vegetation will meet or exceed the eighty percent coverage requirement within two years; however, additional plants will be installed if the area fails to meet such expectations. Monitoring will occur on a monthly basis until the filter marsh achieves a 50 percent areal coverage of desirable planted and recruited wetland vegetation. Upon attainment of the 50 percent coverage criterion, the monitoring frequency will be reduced to four times per year for a period of three years. Subsequent maintenance and monitoring events will occur semi- annually. Should exotic infestation occur, herbicide and/or hand clearing will be utilized to bring the filter marsh into compliance with desired plant specie densities. Special Condition No. 12 of the Staff Report (SFWMD Exhibit 5) requires that the Acme adhere to the filter marsh maintenance plan. The proposed littoral zone construction is expected to be initiated within six months of permit issuance and completed within six months of commencement. The pollutant loading/removal spreadsheets provide an estimate that the marsh will result in the annual removal of 33 pounds of total phosphorus. At the same time, the proposed filter marsh will add the equivalent of one-half inch of water quality treatment benefits within the entirety of Basin B. As a result, with the proposed filter marsh, Acme gave reasonable assurances that the proposed permit modification would provide "an additional fifty (50) percent retention/detention water quality treatment addition to the water quality treatment volumes required in section 5.2.1. of the Basis of Review [for projects within a Water Protection Area or Area Basin]." Fla. Admin. Code R. 40E-41.363(5). Approximately half of the proposed filter marsh will extend north of the east/west C-24 Canal, and half will extend south of it. The northern half will treat water from an area of relatively intense equestrian use just west of WCPPUD; the southern half will continue to treat water flowing through the northern half of the filter marsh. However, the southern half also will treat some water from the C-4 and C-6 canals in WCPPUD, which flows south to the C-24 and then west to the C-2. Exhibit 9B of the Staff Report (SFWMD Exhibit 5) delineates the assumed contributing area of 960 acres. BMPs Provide Improvements in Water Quality Best Management practices (BMPs) are water quality treatment operational practices to prevent pollutants from ultimately entering the receiving water body. BMPs are also often referred to as source controls. Examples of BMPs include street-sweeping and cleaning out storm gutters to control pollutants at their source. BMPs are commonly considered in ERP permitting. The Village of Wellington has mandated a BMP program in Basin B, including: an ordinance dealing with phosphorus and water quality improvement; an ordinance regulating the application of fertilizer, requiring no more than two percent phosphorus content; and an equestrian BMP requiring equestrian residuals, commonly known as manure, be collected and contained in concrete covered bins. Historically, horse manure was stockpiled in the open and exposed to rainfall. Stormwater runoff from the stockpiled manure often flowed directly into the Acme canals. Stormwater runoff from equestrian residuals has been a major contributing factor to the amount of phosphorus being discharged to the Everglades from Basin B. The Village of Wellington also is implementing BMPs for its own canal maintenance and for cleaning phosphorous-laden sediments from its canals. The calculations provided to SFWMD by Acme concerning BMPs do not assume an initial 100-percent compliance. Initially, a 20-percent compliance was assumed because the ordinances are fairly new. These BMPs were not in place when the 1979 permit was issued. Under the current application, it is expected that the BMPs throughout Basin B will significantly reduce the amount of phosphorus ultimately discharged through the two Acme pump stations to the Refuge. Although there is an increase in phosphorus loading from that anticipated in 1979, the BMPs, filter marsh, amendment to the pump operation schedule, comprehensive water quality monitoring plan, and other items in the modification offset the increase. (The modifications in the proposed permit are not designed to address the overall Basin B phosphorus problems.) Comprehensive Water Quality Monitoring Program SFWMD and the Village of Wellington have implemented a comprehensive water quality monitoring program with Basin B. This program includes existing and proposed sampling points within WCPPUD shown on Exhibits 2 and 9B of the Staff Report (SFWMD Exhibit 5). This permit modification requires that Acme continue this monitoring program as specified in Special Condition No. 11 to the Staff Report. Elimination of Existing Control Structure As stated in Finding 19, supra, a 1989 modification to the 1979 authorized construction and operation of a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal, which was never built. Instead, as shown on Exhibit 2 of the Staff Report, the existing SWM system for Equestrian Estates discharges to the C-4 Canal well to the north of the authorized control structure via a 100' wide canal. The proposed permit modification will eliminate the authorization for the Equestrian Estates control structure which was never constructed. This revision is necessary to ensure that discharge from the development will continue to occur upstream of Structure 115, as it does today, and that the on- site detention facilities within Equestrian Estates will function as modeled in the water quality analysis. Polo's Pending Application for Peacock Pond Polo has pending a separate application to SFWMD (Application No. 020215-10) requesting authorization for development of Peacock Pond as a polo field. Polo’s proposed water quality feature for its Peacock Pond polo fields development includes a lake on the north end of Peacock Pond. It appears that the lake would utilize lakes/canals 12 and 13, which are currently located at the north end and northeast corner of Peacock Pond, essentially enlarging those lakes/canals to the south and west into Peacock Pond. Polo's application is currently incomplete and fails to address a number of significant water resource issues. SFWMD mailed an initial Request for Additional Information (RAI) to Polo on March 15, 2002. Responses were due within thirty days. As of the date of the final hearing in this case, no response to the initial RAI had been submitted. Notwithstanding its pending application, Polo professes to believe that its undeveloped properties in WCPPUD are "vested," so that Polo should not be required to provide water quality treatment when developing its properties in the future. But the 1979 permit stated that it only permitted construction in certain parts of WCPPUD and that individual permit modifications would be required for the future development of additional phases. (SFWMD Exhibit 2 at p. 1; special conditions.) All "grand fathered" development already has taken place. No evidence or convincing legal argument was presented by Petitioners for the proposition that land owners seeking to develop their properties in Wellington WCPPUD now or in the future should be "vested" and thus subject to different water management regulations than other land owners seeking to develop their properties in Acme Basin B. SFWMD's Proposed Corrections to Staff Report At the Final Hearing, SFWMD suggested that two corrections be made to the Staff Report. The first would add "Section No. 20" on page 1 of the Staff Report (SFWMD Exhibit 5) to clarify the property is actually located in sections 20 and This type of change would be made administratively even without this proceeding. The other correction is proposed on page 4 of the Staff Report (SFWMD Exhibit 5), pertaining to the description of the water elevation within Basin B and Country Place, as follows: The water elevation within Basin B and Country Place was originally permitted with a wet season control elevation of 12.0' and a dry season control of 13.0' NGVD. The minimum road and finish floor elevations were established at elevation 16.0' and 17.0 NGVD, respectively. The water elevation within Basin B was permitted in 1978 with a schedule stage of 13' NGVD in the wet season and 13' NGVD in the dry season; however, the system has historically been operated with a control elevation of 12' NGVD in the wet season and 13' in the dry season. WCPPUD was originally permitted with a wet season control elevation of 12' NGVD and a dry season control elevation of 13' NGVD. The Country Place pump station discharging into Peacock Pond was to begin operation when water elevations reached 13' NGVD and discontinue when the system was drawn down to elevation 12' NGVD. The operational elevations authorized in this staff report are consistent with those authorized in 1979 for Country Place. The 1978 permit also established a minimum road grade elevation of 16' NGVD and a finished floor elevation of 17' NGVD for Basin B. The 1979 permit for Country Place established the same minimum road grade and finished floor elevations. This correction accurately describes the 1978 permit for Basin B; it is not a substantive change. These and other possible changes to the Staff Report were drafted shortly before the final hearing in the form of an "Addendum to Staff Report." Petitioners contended that this denied them due process. However, this Addendum (which was not introduced into evidence) was presented to propose corrections to minor errors in the original Staff Report and to suggest appropriate ways to address issues raised by Petitioners during prehearing procedures in this case in order to help clarify the intention of the Staff Report for Petitioners' benefit. SFWMD offered to withdraw the latter Addendum proposals if Petitioners so wished; Petitioners declined to request that these proposals be withdrawn, but none are considered to be necessary. Other Contentions Raised By Petitioners Alleged Elimination of Petitioners' Water Treatment Facilities Petitioners contended in their Second Amended Petition that the modification will cause "33 acres of previously permitted and constructed water management facilities to no longer be considered toward meeting water quality treatment." But the 33 acres referenced by the Petitioners were never counted for water quality treatment in the previous permits. Additionally, as discussed above, they do not meet the minimal dimensional criteria or have not been encumbered for water quality purposes. See Finding 41, supra. The only surface water management facility which has a change in its permitted status for water quality treatment is Peacock Pond. Future Development is Not Precluded from Proposing Alternative Water Quality Treatment Petitioners expressed a concern that the proposed permit modification would bind future development to the Acme's design assumptions--specifically, the assumption that, in order to meet SFWMD's criteria for new development, future development projects would include 13 percent lakes. This concern seems to spring primarily from the following statement on page 3 of 21 of the Staff Report (SFWMD Exhibit 5): "This permit modification requires that applicants adhere to the stated surface water management system assumptions for all future development." Reading the Staff Report as a whole, it was reasonably clear that Acme's assumption was made only for purposes of its permit modification application and would not bind future developers in WCPPUD. Rather, future applicants may propose any alternative methods that comply with Chapter 40E-4, Florida Administrative Code, and the BOR to demonstrate compliance with water quality requirements. For example, the Staff Report states on page 13: Future Country Place applicants are not precluded from proposing alternative means of treatment which can be demonstrated to provide an equivalent level of treatment. Further, the assumptions do not preclude the SFWMD from requiring additional treatment measures as necessary from an applicant to provide reasonable assurance that future projects will not cause or contribute to existing water quality problems in Basin B. The testimony of SFWMD witnesses confirmed this reading of the Staff Report. There is no need to further modify the Staff Report to allay Petitioners' expressed concern. Canals/Lakes 12 and/or 13 Not Affected Petitioners' Second Amended Petition questioned whether Acme's canals/lakes 12 and 13, which border Peacock Pond on the north and in the northeast corner, are properly located within Acme's easements. But Acme's application proposes no modifications to those canals/lakes. Not only are canals/lakes 12 and 13 not the subject of this permit modification, Petitioners introduced no competent, substantial evidence demonstrating improper placement of those conveyance features. In an abundance of caution, SFWMD suggested adding the following Special Condition Number 14 to address this issue: If a final determination is made by a court of competent jurisdiction that Acme does not own, have an easement or otherwise have the right to utilize the area where canal/lake Number 12 and/or canal/lake Number 13 is located, then within 30 days of such determination, Acme shall file an application with the SFWMD to move the canal/lake Number 12 and or canal/lake Number 13 to an area which is determined to be owned by Acme or over which Acme has an easement, or modify the surface water management system to discontinue use of canal/lake Number 12 and or canal/lake Number 13. Inclusion of this language would confirm that, if a court makes a final determination that Acme does not have the right or access to utilize Canals/Lakes Number 12 and/or 13, Acme would be required to modify the permit. While adding the suggested language to the Staff Report is appropriate, it is not necessary; reasonable assurances have been provided without any additional language that the permit criteria have been satisfied. If canal/lakes 12 and 13 should ever become unusable, thus preventing a discharge of the eastern half of WCPPUD into the C-4 canal, the drainage system could be split so that the western half discharges into the C-4 canal and the eastern half into the C-6 canal. In that case, a minor modification would be required to lower the weir at structure 117 to 12’ NGVD and the permit is modified. Mr. Higgins performed calculations to demonstrate that such a minor modification would be permittable under applicable criteria.4 Wetlands in Pod F Not Adversely Affected The Staff Report includes reference to wetlands located in the southeast corner of Pod F of WCPPUD. (Pod F itself is in the southeast corner of Section 20.) Petitioners seemed to take issue with the Staff Report's description of these wetlands. They also disputed whether Acme provided reasonable assurance that these wetlands would not be adversely affected by the proposed modifications. Specifically, Polo expressed concern that the proposed modifications would undermine a plan it has to restore wetlands in Pod F for use as mitigation for an after-the-fact permit to be issued to resolve a SFWMD cease and desist order imposed on Polo for activities in an adjacent polo field, and perhaps also as mitigation for wetland impacts by Polo and other future developers in the area. In taking these positions, Petitioners criticized SFWMD for not presenting expert testimony from a biologist. The Staff Report states that "the 3.74-acres of cypress wetland contained within Pod F" are the only other wetlands in WCPPUD besides Peacock Pond. These wetlands were described as being "in poor biological condition." Petitioners argued that the testimony of their expert supported a finding that the wetlands in Pod F actually are approximately 25 acres in size. However, her actual testimony was that her proposed wetlands restoration project was 25 acres in size. Part of her proposed restoration project includes the "vertical relocation" of higher ground now infested with melaleuca and other nuisance and exotic species. In addition, she admitted that she had not delineated wetlands in Pod F using the methodology adopted for that purpose by the State of Florida; instead, she used methodology adopted by the United States Army Corps of Engineers was used. Not only are the two methodologies different, the Army Corps methodology includes wetlands not included under the State of Florida methodology. Finally, Petitioners' expert admitted that less than 4 acres of the 25 acres included in her project area consisted of "cypress heads." Taken as a whole, the evidence did not demonstrate a need to revise the Staff Report's description of the size of the wetlands in Pod F. As for the Staff Report's description of the Pod F wetlands' "poor biological condition," this is consistent with the testimony of Petitioners' expert. She testified that the wetlands' hydrology was deficient, especially on the northern half of the restoration project area, and that the tract is "highly infested with exotic vegetation," leading to the need for restoration. The hydrology is better on the southern half of the restoration project area, where the cypress trees are healthy; but the cypress trees on the northern half of the tract are under stress, with lots of old world climbing vines on them and other infestation of exotic vegetation, including melaleuca. On site visits, the expert saw "wading birds, snakes, signs of raccoon [and n]umerous bird species." No endangered or threatened species were said to be using the tract at this time. One purpose of the restoration project would be to create better wildlife habitat. Petitioners' expert testified that if water levels were lowered in the proposed restoration project area, there could be an adverse impact on existing and planned wetlands. However, Petitioners' expert did not have evidence or information indicating historic or current water levels. Petitioners' expert also did not know whether the permit modification will lower or have any affect on the water levels in that area. Petitioners introduced neither competent evidence of current groundwater levels under the proposed wetlands mitigation project, nor competent evidence as to how the permit modification might change those groundwater levels. Acme and SFWMD presented evidence that the water levels in the C-4 and C-23 canals, directly adjacent to Pod F, will not be changed significantly as a result of the permit modification; that the proposed permit modification will have no effect on the groundwater levels in this wetland area; and that, as a result, no wetland impacts will occur from the permit modifications. Petitioners did not rebut the Respondents' evidence. As a result, Acme has demonstrated that not only groundwater and surface water flows and levels but also the value of wetland functions in Pod F will not be adversely impacted, as required by Rule 40E-4.301(d) and (g), Florida Administrative Code. The evidence was that SFWMD biologists visited the Pod F wetlands and prepared a report which formed the basis of statements in the Staff Report about the absence of wetland impacts. Given the finding that groundwater levels in the Pod F will not change, the testimony of expert biologists was not necessary. Assumed Commercial Acreage Through the testimony of Michael Nelson, Petitioners questioned a purported statement in the Staff Report that there are 24.4 acres of commercial acreage in WCPPUD. According to Mr. Nelson, there actually are only five acres of commercially zoned property in the PUD. Mr. Nelson stated that this, along with other alleged errors, undermine his confidence in SFWMD's entire evaluation of the proposed permit modification. In fact, the Staff Report, at page 8, states that "the original permit application (in 1979) included only two land uses: 935.6 acres of single family use . . . and 24.4 acres of commercial area." There was no statement that 24.4 acres is zoned commercial today. Past Violations Petitioners also assert that the proposed permit modification should be denied because Acme has not strictly abided by applicable permits. But Acme's most significant past violation was the failure to operate Peacock Pond as required by the 1979 Permit. As reflected in Findings 21 and 23, supra, the primary purpose of this proposed modification is to resolve the enforcement proceedings that arose out of the Peacock Pond violation. Acme also has been one of thousands of SFWMD permit holders who have not certified construction of their systems in conformance with the applicable permits, which is required to transfer the permit into operational status. For many years, SFWMD did not monitor permits for certification and did not enforce failure to certify permits. When monitoring and enforcement was initiated in 1995, it was found that over 12,000 permits were in violation for failure to submit the required certifications. SFWMD prioritized the missing certifications and began methodical follow-up. When SFWMD raised the issue with Acme, Acme responded, and the outstanding violations are being resolved. SFWMD saw no need to initiate formal enforcement proceedings and has been treating the outstanding violations as a "non-compliance" issue since it is a paperwork problem, not an environmental resource problem. At this time, the modifications to structures 115 and 117 in accordance with the several emergency authorizations to address septic tank problems have been certified. However, as indicated, the 1979 Permit itself cannot be certified so long as the Peacock Pond pumped retention area is not in place and operational. It is found that Acme has sufficient financial, legal, and administrative capabilities to ensure that water management modifications will be undertaken in accordance with the terms and conditions of the modified permit. (Since Acme is now a dependent special district of the Village of Wellington, the Village of Wellington actually will be responsible for installation, operation, and maintenance of these structures.) Notwithstanding the past violations, reasonable assurances have been given that Acme will comply with the terms of its proposed permit modification. Propriety of Petitioners’ Purpose Acme has raised the issue whether Petitioners participated in this proceeding for an "improper purpose," i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." § 120.595(1)(e)1, Fla. Stat. (2003). But it is found that, under the totality of circumstances, Petitioners' participation in this proceeding was not for an improper purpose, as defined by statute. Petitioners' participation in this proceeding has indeed needlessly increased Acme's cost of obtaining SFWMD's permit approval; but the evidence did not prove that this was Petitioners' primary purpose. It also is clear that Petitioners attempted to delay this proceeding through repeated requests for continuances (and other procedural and evidentiary objections) and that, while they usually based their requests for continuances in part on the alleged need for more time for more discovery, they failed to pick up voluminous copies of requested discovery documents and complained about how much money they had already spent on discovery. Nonetheless, it is found that Acme did not prove that Petitioners' primary purpose for participating in this proceeding was to delay the proceeding. It seems reasonably clear that, had Petitioners retained a competent expert engineer to evaluate its case, the expert probably would have advised Petitioners that they would not be able to successfully challenge SFWMD's proposed agency action. For that and other reasons, a reasonable person would not have raised and pursued some of the issues raised by Petitioners in this proceeding. But it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose.
