The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of April, 2011.
The Issue The issue in this case was whether the Respondent, City of Cape Coral (City), was entitled to an Individual Environmental Resource Permit (Permit) that would allow removal of the Chiquita Boat Lock (Lock) and associated uplands, and installation of a 165-foot linear seawall in the South Spreader Waterway in Cape Coral, Florida.
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 Department is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of the Department's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated thereunder in the Florida Administrative Code. Pursuant to that authority, the Department determines whether to issue or deny applications for environmental resource permits. The City is a Florida municipality in Lee County. The City is the applicant for the Permit allowing the removal of the Lock and installation of a seawall (Project). The Project is located within the geographic boundary of the City. The South Spreader Waterway is a perimeter canal separating the City's canal system from shoreline wetlands to the west and south, which run the length of Matlacha Pass to the mouth of the Caloosahatchee River at San Carlos Bay.1/ The Association is a Florida non-profit corporation that was created in 1981. The Association was created to safeguard the interests of its members. The Association has approximately 150 members who reside in Matlacha and Matlacha Isles, Florida. A substantial number of its members have substantial interests in the use and enjoyment of waters adjacent to and surrounding Matlacha. The Association's members were particularly interested in protecting the water quality of the surface waters in the area. Matlacha is an island community located to the northwest of Cape Coral, the South Spreader Waterway, and the Lock. Matlacha is located within Matlacha Pass Aquatic Preserve. Matlacha Pass is classified as a Class II waterbody designated for shellfish propagation or harvesting, and is an Outstanding Florida Water (OFW). See Fla. Admin. Code R. 62-02.400(17)(b)36; 62-302.700(9)(h). Petitioner, Karl Deigert, is a resident and property owner in Matlacha. Mr. Deigert is the president of the Association. Mr. Deigert’s house in Matlacha is waterfront. He holds a captain’s license and has a business in which he gives sightseeing and ecological tours by boat of the waters around Matlacha. He fishes in the waters around his property and enjoys the current water quality in the area. He is concerned that removal of the Lock would have negative effects on water quality and would negatively impact the viability of his business and his enjoyment of the waters surrounding Matlacha. Petitioner, Melanie Hoff, is a resident and property owner in St. James City. St. James City is located to the southwest of Cape Coral. Ms. Hoff’s property is located within five nautical miles of the Lock. Ms. Hoff engages in various water sports and fishes in the waters around her property. She moved to the area, in part, for the favorable water quality. She is concerned that removal of the Lock would negatively impact water quality and her ability to use and enjoy waters in the area. Petitioner, Robert S. Zarranz, is a resident and property owner in Cape Coral. Mr. Zarranz’s house in Cape Coral is waterfront. He is an avid fisherman and boater. He is concerned that removal of the Lock would negatively impact water quality, and that the quality of fishing in the area would decline as a result. Petitioner, Yolanda Olsen, is a resident and property owner in Cape Coral. Ms. Olsen’s house in Cape Coral is waterfront. She enjoys watersports and birdwatching in the areas around her property. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Jessica Blanks, is a resident and property owner in Cape Coral. Ms. Blanks’ house in Cape Coral is waterfront. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Joseph Michael Hannon, is a resident and property owner in Matlacha. Mr. Hannon is a member of the Association. He enjoys boating, fishing, and kayaking in the waters surrounding Matlacha. He is concerned that removal of the Lock would negatively impact water quality, and that his ability to enjoy his property and the surrounding waters would suffer as a result. Petitioner, Debra Hall, did not appear at the final hearing and no testimony was offered regarding her standing. The Project and Vicinity The Project site is 0.47 acres. At the Lock location, the South Spreader Waterway is 200 feet wide, and includes a 125-foot wide upland area secured by two seawalls, the 20-foot wide Lock, a 32-foot wide upland area secured by one seawall, and 23 feet of mangrove wetlands. The Lock is bordered to the north by property owned by Cape Harbour Marina, LLC, and bordered to the south by mangrove wetlands owned by the state of Florida. The 125-foot wide upland area and the 20-foot wide Lock form a barrier separating the South Spreader Waterway from the Caloosahatchee River. The preponderance of the competent substantial evidence established that the South Spreader Waterway behind the Lock is not tidally influenced, but would become tidally influenced upon removal of the Lock. Joint Exhibit 1 at p. 46. The City proposes to remove the Lock and one of the seawalls, reducing the 125-foot upland area to 20 feet. The proposed future condition of the area would include 125 feet of open canal directly connecting the South Spreader Waterway with the Caloosahatchee River. Joint Exhibit 1 at p. 47. The primary purpose of the Lock's removal is to alleviate safety concerns related to boater navigation. The Project's in-water construction includes demolition and removal of the existing Lock, removal of existing fill in the 125-foot upland area, removal of existing seawalls, and construction of replacement seawalls. The City would employ Best Management Practices (BMPs) throughout the course of the Project, including sediment and erosion controls such as turbidity barriers. The turbidity barriers would be made of a material in which manatees could not become entangled. All personnel involved with the Project would be instructed about the presence of manatees. Also, temporary signs concerning manatees would be posted prior to and during all in-water project activities. History of the South Spreader Waterway In the mid-1970's, the co-trustees of Gulf American Corporation, GAC Properties Credit, Inc., and GAC Properties, Inc., (collectively GAC) filed for after-the-fact permits from the Department's predecessor agency (DER), for the large dredge and fill work project that created the canal system in Cape Coral. In 1977, DER entered into CO 15 with GAC to create the North and South Spreader Waterways and retention control systems, including barriers. The Lock was one of the barriers created in response to CO 15. The Spreader Waterways were created to restore the natural hydrology of the area affected by GAC's unauthorized dredging and filling activity. The Spreader Waterways collected and retained surface runoff waters originating from the interior of Cape Coral's canal system. The South Spreader Waterway was not designed to meet water quality standards, but instead to collect surface runoff, then allow discharge of the excess waters collected over and through the mangrove wetlands located on the western and southern borders of the South Spreader Waterway. This fresh water flow was designed to mimic the historic sheet flow through the coastal fringe of mangroves and salt marshes of the Caloosahatchee River and Matlacha Pass estuaries. The fresh water slowly discharged over the coastal fringe until it finally mixed with the more saline waters of the estuaries. The estuarine environments located west and south of the Lock require certain levels of salinity to remain healthy ecosystems. Restoring and achieving certain salinity ranges was important to restoring and preserving the coastal fringe. In 1977 GAC finalized bankruptcy proceedings and executed CO 15. CO 15 required GAC to relinquish to the state of Florida the mangrove wetlands it owned on the western and southern borders of the South Spreader Waterway. This land grant was dedicated by a warranty deed executed in 1977 between GAC and the state of Florida. The Petitioners' expert, Kevin Erwin, worked as an environmental specialist for DER prior to and during the construction of the Spreader Waterways. Mr. Erwin was DER's main representative who worked with the GAC co-trustees to resolve the massive dredge and fill violation and design a system to restore the natural hydrology of the area. Mr. Erwin testified that the Lock was designed to assist in retention of fresh water in the South Spreader Waterway. The fresh water would be retained, slowed down, and allowed to slowly sheet flow over and through the coastal fringe. Mr. Erwin also testified that the South Spreader Waterway was not designed to allow direct tidal exchange with the Caloosahatchee River. In Mr. Erwin's opinion, the South Spreader Waterway appeared to be functioning today in the same manner as originally intended. Breaches and Exchange of Waters The Department's second amended notice of intent for the Project, stated that the Project was not expected to contribute to current water quality violations, because water in the South Spreader Waterway was already being exchanged with Matlacha Pass and the Caloosahatchee River through breaches and direct tidal flow. This second amended notice of intent removed all references to mitigation projects that would provide a net improvement in water quality as part of the regulatory basis for issuance of the permit. See Joint Exhibit 1 at pp. 326-333. The Department's witnesses testified that waters within the South Spreader Waterway currently mix with waters of the Caloosahatchee River when the Lock remains open during incoming and slack tides. A Department permit allowed the Lock to remain open during incoming and slack tides. Department witness, Megan Mills, the permitting program administrator, testified that she could not remember the exact date that permit was issued, but that it had been "a couple years." The location of breaches in the western and southern banks of the South Spreader Waterway was documented on another permit's drawings and pictures for a project titled "Cape Coral Spreader Waterway Restoration." See Cape Coral Ex. 9. Those documents located three breaches for repair and restoration identified as Breach 16A, Breach 16B, and Breach 20. The modeling reports and discussion that support the City's application showed these three breaches connect to Matlacha Pass Aquatic Preserve. Breach 20 was described as a connected tidal creek. Breach 16A and 16B were described as allowing water movement between Matlacha Pass and the South Spreader Waterway only when relatively high water elevations occurred in Matlacha Pass or in the South Spreader Waterway. The Department's water quality explanation of "mixing," was rather simplistic, and did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class II waters designated for shellfish propagation or harvesting. Such a consideration would require the Department to determine whether to apply the OFW permitting standards, and the Class II waters permitting criteria in section 10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I. See Fla. Admin Code R. 62-330.302(1)(a); 62-4.242(2); and 62-302.400(17)(b)36. The Caloosahatchee River, at its entrance to the South Spreader Waterway, is a Class III waters restricted for shellfish harvesting. The mouth of the Caloosahatchee River is San Carlos Bay, which is a Class II waters restricted for shellfish harvesting. There was no evidence that the Department's regulatory analysis considered that the waterbody in which the Project would occur directly connects to Class III waters that are restricted for shellfish harvesting, and is in close proximity to Class II waters that are restricted for shellfish harvesting. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302(1)(c).2/ Total Nitrogen The City's expert, Anthony Janicki, Ph.D., testified that nitrogen concentrations in the Caloosahatchee River were higher than in the South Spreader Waterway in the years 2017 and 2018. Thus, he opined that if the Lock is removed, water from the South Spreader Waterway would not negatively impact the Caloosahatchee River. However, the City's application was supported by an analysis, with more than a decade of monitoring data, which showed nitrogen concentration values were comparable inside the South Spreader Waterway and in the Caloosahatchee River. Dr. Janicki also used the Department's Hydrologic Simulation Program – FORTRAN (HSPF) watershed model to estimate the Total Nitrogen (TN) loading that would enter the Caloosahatchee River through the Chiquita Lock. Dr. Janicki estimated that TN loading to the Caloosahatchee River, after removal of the Chiquita Lock, would amount to 30,746 pounds per year. The Caloosahatchee River is listed as impaired for nutrients and has a TN Total Maximum Daily Load (TMDL) that was set by the Department in 2009. Dr. Janicki opined that removing the Lock would not result in adverse impacts to the surrounding environment. But the Petitioners obtained his concession that his opinion was dependent on the City's completion of additional water quality enhancement projects in the future as part of its obligations under the Caloosahatchee Estuary Basin Management Action Plan (BMAP) for achieving the TN TMDL. Dr. Janicki additionally testified that the potential TN loading to the Caloosahatchee River did not anticipate an actual impact to the River's water quality because the TN loads from the South Spreader Waterway were already factored into the 2009 TMDL. He essentially testified that the Lock's removal was anticipated and was factored into the model when the TMDL was established in 2009. Thus, the Petitioners proved by a preponderance of the competent and substantial evidence that the Department and the City were not aligned regarding how the City's application would provide reasonable assurances of meeting applicable water quality standards. The Petitioners proved by a preponderance of the competent and substantial evidence that the City relied on future projects to provide reasonable assurance that the removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. The Petitioners proved by a preponderance of the competent and substantial evidence that the Department relied on a simplistic exchange of waters to determine that removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. Water Quantity and Salinity The engineering report that supports the City's application stated that when the Lock is removed, the South Spreader Waterway behind the Lock will become tidally influenced. With the Lock removed, the volume of daily water fluxes for the South Spreader Waterway would increase from zero cubic meters per day to 63,645 cubic meters per day. At the location of Breach 20, with the Lock removed, the volume of daily water fluxes would drastically decrease from 49,644 cubic meters per day to eight cubic meters per day. Dr. Janicki testified that Breach 20 was connected to a remnant tidal creek that meanders and eventually empties into an embayment. The evidence demonstrated that the embayment is Punta Blanca Bay, which is part of the Matlacha Pass Aquatic Preserve. Dr. Janicki opined that Breach 20 was an area of erosion risk and sediment transport into downstream mangroves that would be significantly reduced by removing the Lock. He explained that the reductions in flow would result in reductions in velocities through Breach 20 and in the South Spreader Waterway itself. Mr. Erwin testified that Breach 20 was not a "breach."3/ He described it as the location of a perpendicular intersection of the South Spreader Waterway with a small tidal creek, which connected to a tidal pond further back in the mangroves. Mr. Erwin testified that an "engineered sandbag concrete structure" was built at the shallow opening to limit the amount of flow into and out of this tidal creek system. But it was also designed to make sure that the tidal creek system "continued to get some amount of water." As found above, Lock removal would drastically reduce the volume of daily water fluxes into and out of Breach 20's tidal creek system. Mr. Erwin also testified that any issues with velocities or erosion would be exemplified by bed lowering, siltation, and stressed mangroves. He persuasively testified, however, that there was no such evidence of erosion and there were "a lot of real healthy mangroves." Mr. Erwin opined that removal of the Lock would cause the South Spreader Waterway to go from a closed, mostly fresh water system, to a tidal saline system. He described the current salinity level in the South Spreader Waterway to be low enough to support low salinity vegetation and not high enough to support marine organisms like barnacles and oysters. The City's application actually supports this opinion. Using the Environmental Fluid Dynamics Code (EFDC) model developed by Dr. Janicki for this Lock removal project, comparisons were made describing the salinity distribution within the South Spreader Waterway. The model was run with and without the Lock, for both a wet and dry year. Dr. Janicki testified, and the model showed, that removal of the Lock would result in increased salinity above the Lock and decreased salinity downstream of the Lock. However, he generally opined that the distribution of salinities was well within the normal ranges seen in this area. The City's application also concluded that the resultant salinities did not fall outside the preferred salinity ranges for seagrasses, oysters, and a wide variety of fish taxa. However, Dr. Janicki did not address specific changes in vegetation and encroachment of marine organisms that would occur with the increase in salinity within the South Spreader Waterway. Secondary Impacts to the Mangrove Wetlands Mr. Erwin testified that the mangroves located on the western and southern borders of the South Spreader Waterway are currently in very good health. He additionally testified that loss of the current fresh water hydraulic head and an increase in salinity within the South Spreader Waterway would negatively impact the health of the mangrove wetlands. In addition, the City's application stated that removing the Lock would result in a drop in the water level of one to one and a half feet within the South Spreader Waterway. Mr. Erwin credibly and persuasively testified that a drop in water level of only a few inches would have negative effects on the health of mangroves, and that a drop of a foot could result in substantial mangrove die-off. Mr. Erwin testified that the mangrove wetlands adjacent to the South Spreader Waterway consist of a variety of plants and algae in addition to mangroves. He described the wetlands as a mangrove community made up of different types of mangroves, and epiphytic vegetation such as marine algae. This mangrove community provides habitat for a "wide range of invertebrates." He further testified that these plants and algae uptake and transform the nutrients that flow over and through the mangrove wetlands before they reach the receiving waters. Thus, the mangrove wetlands on the western and southern borders of the South Spreader Waterway serve to filter nutrients out of the water discharged from the Waterway before it reaches Matlacha Pass and the Caloosahatchee River. Mr. Erwin's credible and persuasive testimony was contrary to the City's contention that Lock removal would not result in adverse impacts to the mangrove wetlands adjacent to the South Spreader Waterway. The City and the Department failed to provide reasonable assurances that removing the Lock would not have adverse secondary impacts to the health of the mangrove wetlands community adjacent to the South Spreader Waterway. Impacts to Fish and Wildlife, Including Endangered and Threatened Species The Florida Fish and Wildlife Conservation Commission (FWC) reviewed the City's application and determined that if BMPs for in-water work were employed during construction, no significant adverse impacts on fish and wildlife were expected. For example, temporary signs concerning manatees would be posted prior to and during all in-water project activities, and all personnel would be instructed about the presence of manatees. The FWC determination only addressed direct impacts during in-water construction work. The City's application contained supporting material that identified the major change resulting from removal of the Lock that may influence fish and wildlife in the vicinity of the Project, was the opportunity for movement to or from the South Spreader Waterway canal system. Threatened and endangered species of concern in the area included the Florida manatee and the smalltooth sawfish. The City's application stated that literature review showed the smalltooth sawfish and the Florida manatee utilized non-main-stem habitats, such as sea-wall lined canals, off the Caloosahatchee River. The City cited studies from 2011 and 2013, which showed that non-main-stem habitats were important thermal refuges during the winter, and part of the overall nursery area for smalltooth sawfish. The City concluded that removal of the Lock "would not be adverse, and would instead result in increased areas of useable habitat by the species." However, the Petitioner's expert witness, John Cassani, who is the Calusa Waterkeeper, testified that there is a smalltooth sawfish exclusion zone downstream of the Lock. He testified that the exclusion zone is a pupping area for smalltooth sawfish, and that rapid salinity fluctuations could negatively impact their habitat. The City also concluded that any impacts to the Florida manatee would not be adverse, "and would instead result in increased areas of useable habitat by the species, as well as a reduction in risk of entrapment or crushing in a canal lock system." At the same time, the City acknowledged that "watercraft collision is a primary anthropogenic threat to manatees." The City's literature review included a regional assessment by FWC's Fish and Wildlife Research Institute (FWRI) from 2006. Overall, the FWRI report concluded that the mouth of the Caloosahatchee River, at San Carlos Bay, was a "hot spot" for boat traffic coinciding with the shift and dispersal of manatees from winter refugia. The result was a "high risk of manatee- motorboat collisions." In addition, testimony adduced at the hearing from an 18-year employee of Cape Harbour Marina, Mr. Frank Muto, was that Lock removal would result in novice boaters increasing their speed, ignoring the no-wake and slow-speed zones, and presenting "a bigger hazard than the [L]ock ever has." Boater Navigation Concerns Oliver Clarke was the City’s principal engineer during the application process, and signed the application as the City's authorized agent. Mr. Clarke testified that he has witnessed boater congestion at the Lock. He also testified that lack of boating experience and weather concerns can exacerbate the boater congestion issues at the Lock. Petitioners presented the testimony of Mr. Frank Muto, the general manager of Cape Harbour Marina. Mr. Muto has been at the Cape Harbour Marina for 18 years. The marina has 78 docks on three finger piers along with transient spots. The marina is not currently subject to tidal flows and its water depth is between six and a half and seven and a half feet. He testified that they currently have at least 28 boats that maintain a draft of between four and a half and six feet of water. If the water depth got below four feet, those customers would not want to remain at the marina. Mr. Muto further testified that the Lock was in place when the marina was built, and the marina and docks were designed for an area with no tidal flow. Mr. Muto also testified that he has witnessed several boating safety incidents in and around the Lock. He testified that he would attribute almost all of those incidents to novice boaters who lack knowledge of proper boating operations and locking procedures. Mr. Muto additionally testified that there is law enforcement presence at the Lock twenty-four hours a day, including FWC marine patrol and the City's marine patrol.
Conclusions For Petitioners: J. Michael Hannon, Qualified Representative 2721 Clyde Street Matlacha, Florida 33993 John S. Turner, Esquire Peterson Law Group Post Office Box 670 Fort Myers, Florida 33902 For Respondent City of Cape Coral: Craig D. Varn, Esquire Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 Steven D. Griffin City of Cape Coral Assistant City Attorney Post Office Box 150027 Cape Coral, Florida 33915-0027 For Respondent Department of Environmental Protection: Kirk Sanders White, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The Department of Environmental Protection enter a final order denying Individual Environmental Resource Permit Number 244816-005 to the City of Cape Coral for removal of the Chiquita Boat Lock. The final order deny Petitioners' request for an award of attorney's fees and costs. DONE AND ENTERED this 12th day of December, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 12th day of December, 2019.
The Issue The issue is whether reasonable assurance has been provided by Sarasota County (County) for the issuance of Environmental Resource Permit (ERP) No. 44040881.000 authorizing the proposed alteration of a drainage ditch in the City of Sarasota (City), and whether Petitioner, SRQUS, LLC, was entitled to receive notice of the application pursuant to Florida Administrative Code Rule 40D-1.603(9)(a) and (b).
Findings Of Fact Parties Petitioner is a Florida limited liability corporation established in 2010 whose only members are Erika and Achim Ginsberg-Klemmt. In 2010, Petitioner purchased parcel 2009-16- 0015 in a tax deed sale. The parcel consists primarily of the submerged lands within the marina basin adjacent to the project area. Petitioner contends that the tax deed accords it ownership of the western most 130 feet of the existing ditch and that the County is not authorized to do work on that property. The City and County dispute this claim and it is now being litigated in circuit court. The City claims ownership or control of all of the project area to be addressed under the permit. The City authorized the County to apply for and construct the improvements authorized by the permit pursuant to an interlocal agreement with the County for consolidation of stormwater management responsibilities. The District is the agency charged with the responsibility of controlling water resources within its geographic boundaries and to administer and enforce chapter 373 and the rules promulgated in rule division 40D. The County submitted the application pursuant to an interlocal agreement with the City and will construct, operate, and maintain the project if the permit is issued. The Project U.S. Highway 41, also known as Tamiami Trail, travels through downtown Sarasota. During rainy months, between Fruitville Road and Second Street, U.S. Highway 41 experiences frequent roadway flooding. At the area where U.S. Highway 41 floods and between the Quay development to the north and the Ritz-Carlton Hotel to the south, is a stormwater ditch that drains west into a marina basin or bayou adjoining Sarasota Bay. However, it does not directly discharge into Sarasota Bay. The ditch is an upland cut drainage ditch approximately 650 feet in length and has been in existence for decades. The ditch is covered under a National Pollutant Discharge Elimination System (NPDES) Municipal Separate Stormwater Sewer System (MS4) permit issued to the County for the surrounding communities. Contaminants in the stormwater system are addressed under this permit. The ditch provides the only outfall for an approximately 46-acre heavily urbanized drainage basin for which stormwater is collected through the stormwater system. The stormwater is discharged into the drainage ditch through a double concrete box culvert under U.S. Highway 41 and is ultimately conveyed to a marina basin adjoining Sarasota Bay. The ditch is located in what was originally platted as the right-of-way for Eighth Street (now known as Second Street) on the Central Broadway subdivision plat within the City. Pursuant to an earlier exemption determination by the District, in 2004 the County conducted maintenance dredging on the easterly portion of the drainage ditch in an effort to remove the sediments and vegetation that had built up in the ditch over the years and reduced its flow. Since that time, the ditch has again filled in as a result of the significant amounts of sedimentation from stormwater flows entering and settling in the ditch and significant amounts of vegetation. Also, flooding on U.S. Highway 41 has become more frequent. In its current condition, the ditch is approximately eight to 12 feet wide and eight to 12 inches deep, is poorly drained due to the sedimentation and heavily overgrown mangroves and nuisance vegetation, and is tidally influenced. Accumulated sediments in the ditch are approximately four feet thick at the eastern end and become thinner at the western end of the ditch. In August 2009, staff from the City, County, District, and Florida Department of Transportation met at the site of the ditch to conduct a pre-application meeting and discuss possible ways of addressing flooding problems at this location. Aside from the ditch improvements being proposed by the County, the only other remedy is to pipe the ditch, which is cost-prohibitive and would defeat the County's goal of keeping as much desirable vegetation in place as possible. To address flooding and maintenance concerns, on September 8, 2011, the County submitted an ERP application to the District to seek authorization to dredge and undertake ditch improvements. The application identifies the ditch as being within City right-of-way. Included with the application was a letter from the City authorizing the County to apply for the ERP on behalf of the City pursuant to their interlocal stormwater agreement. At the time the application was filed, the County Property Appraiser's Office Geographic Information Systems tax parcel map showed the ditch and dredge area as being within the City right-of-way. The proposed project consists of reconstruction of the ditch with a defined channel to be lined with rip rap and geotextile fabric and the addition of two sediment sump boxes. Some of the mangroves and nuisance vegetation will be removed as necessary to construct the ditch improvements. Mangroves will be preserved where not impacted by construction. The Property Dispute Petitioner claims ownership of the western 130 feet of the right-of-way in which the ditch is located. As noted above, at the time the permit application was submitted, official property records showed the existing ditch as located within City right-of-way. Therefore, the County and District had no reason to doubt City ownership or control of the ditch area. A recently filed circuit court action seeks to determine ownership of a portion of the right-of-way in which the ditch is located. The circuit court has exclusive jurisdiction over all actions involving the titles and boundaries or right of possession of real property. District rules permit applicants to demonstrate sufficient ownership or legal control of the proposed project area in order to conduct the activities to be permitted. An applicant with eminent domain authority that does not have ownership or control for all property necessary for the proposed project may rely on its eminent domain authority to demonstrate sufficient ownership or legal control of the property necessary to construct the project. The permit will be conditioned to prohibit construction until all ownership or legal control of the property necessary to construct the project is acquired by the permittee. See Fla. Admin. Code R. 40D-4.301(1)(j); BOR § 2.0. The proposed permit contains Specific Condition No. 8 which enforces this requirement. Reasonable assurance of sufficient ownership or legal control of the project area is provided by virtue of the City's and County's eminent domain authority and the fact that the proposed permit prohibits construction until the permittee acquires all necessary ownership or other legal control of the property necessary to construct the project. Notice Requirements Petitioner contends the permit should be denied because it did not receive notice of the application pursuant to rule 40D-1.603(9). That rule provides that when the applicant is an entity with the power of eminent domain that does not have current ownership or control of the entire project area as described in the application, the applicant shall provide the property owner(s) identified in the application with so-called eminent domain noticing, which consists of (a) written notice of District receipt of the application, and (b) written notice of agency action on the application. Persons entitled to eminent domain noticing are owners of property located within the proposed project area as identified in the county property appraiser's records within 30 days prior to the filing of the application. The purpose of the District's eminent domain noticing provision is to provide notice and an opportunity to be heard to owners of property subject to being condemned or otherwise acquired by the applicant for part of the project area. As originally submitted, the application proposed some activities extending approximately ten feet into the marina basin and beyond the claimed City right-of-way. The permit application did not indicate City ownership or control of submerged lands within the marina basin. Consequently, in its request for additional information (RAI), the District advised that pursuant to rule 40D-1.603(9)(a) and (b), eminent domain notices to affected landowners would be required for any proposed easements over offsite property. As part of the application process, a seagrass study was prepared which showed seagrasses and oyster beds growing in the marina basin just beyond the end of the ditch, where some construction activity was proposed. Because seagrasses were observed growing at the end of the ditch, the County responded to the RAI by scaling back the project to confine activities to the City's right-of-way. With the change in project area, offsite easements were no longer necessary for the project. Thus, the project no longer required eminent domain noticing pursuant to rule 40D-1.603(9). The County and District acknowledge that Petitioner did not receive eminent domain notices. Although not provided notice, Petitioner nevertheless became aware of the permit application during the course of its own application process with the Department of Environmental Protection (DEP) for an ERP to construct a 4,760-square foot, ten-slip docking facility on its adjacent submerged lands in the marina basin. The lack of notice has not prevented Petitioner from challenging the project or has otherwise prejudiced it. Having received actual notice of the permit, Petitioner filed a timely objection and request for hearing in this matter. Petitioner contends that while it does not oppose the ditch dredging, it would have wanted an opportunity to suggest a re-design of the ditch to include a dingy dock and kayak launching facility. Although it has known of the project since at least May 21, 2012, when it filed its first petition, and probably several months earlier, Petitioner has not provided the County or District with any alternative designs to maximize the potential for recreational use of the drainage canal. There is no requirement for ERP applicants to provide alternative designs to maximize potential public recreational uses. Requiring the County to do so would impose requirements that go beyond the conditions for permit issuance. ERP Permitting Criteria To obtain an ERP, a permit applicant must provide reasonable assurance that the proposed activities will not cause adverse impacts to water quality, water quantity, and other environmental resources. For activities proposed in, on, or over wetlands and other surface waters, reasonable assurance must also be provided that such activities are not contrary to the public interest and do not cause unacceptable cumulative impacts upon wetlands and other surface waters. The conditions for issuance of an ERP are set forth in rules 40D-4.301 and 40D-4.302. The standards and criteria in the BOR are used to determine whether an applicant has met the conditions for issuance in those two rules. The parties have stipulated that the project either complies with the following conditions for issuance or that they are not applicable: 40D-4.301(1)(b), (c), (g), (h), (j), and (k) and 40D-4.302(1)(a)6. Also, rule 40D-4.302(1)(c) and (d), which concerns projects located in, adjacent to, or in close proximity to certain shellfish harvesting waters or which involve vertical seawalls, is not applicable to this matter. Based on the parties' Stipulation, at issue is whether reasonable assurance has been provided that the proposed activities will not cause adverse water quantity impacts to receiving waters and adjacent lands (40D-4.301(1)(a)); will not adversely impact the value of functions provided to fish and wildlife by wetlands and other surface waters (40D-4.301(1)(d)); will not adversely affect the quality of receiving waters such that applicable state water quality standards will be violated (40D-4.301(1)(e)); and will not cause adverse secondary impacts to the water resources (40D-4.301(1)(f)). Petitioner also contends that the County has failed to give reasonable assurance that the project is not contrary to the public interest and that it will not cause unacceptable cumulative impacts, as required by rule 40D-4.302(1)(a) and (b). Water Quantity Impacts Rule 40D-4.301(1)(a) requires reasonable assurance be provided that the project will not cause adverse water quantity impacts to receiving waters and adjacent lands. Existing and post-construction flows were modeled by the County using the accepted Inter-Connected Pond Routing model. Drainage calculations demonstrate that for the 25-year storm, the flood stage will be reduced by 1.94 feet, and for the 100-year storm event, by 1.75 feet, which will provide flood relief. Modeling results demonstrate a reduction in flood stages not just for U.S. Highway 41 but for other adjoining properties. The evidence establishes that while the project is not designed to eliminate all potential flooding, flooding during normal events will be reduced. Specifically, no adverse water quantity impacts were demonstrated with respect to Petitioner's adjacent submerged lands. Improvements proposed to the ditch will increase its storage capacity and allow water to flow more efficiently. By increasing the storage and hydraulic efficiency of the ditch without generating any additional runoff volume, the proposed activities will not cause adverse water quantity impacts and will have no adverse water quantity impacts on the receiving waters. Reasonable assurance has been demonstrated that the project will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not cause adverse flooding to on-site or off-site property, including adjacent submerged lands owned by Petitioner. Impact on Value of Functions Rule 40D-4.301(1)(d) requires that reasonable assurance be provided that project activities "will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District." The existing ditch provides limited ecological functions for fish and wildlife, as it contains significant levels of exotics and nuisance vegetation that provide little in the way of habitat. The removal of the nuisance vegetation, improved water circulation, and decreased sediments will be an improvement. The proposed ditch reconstruction and replanting with other vegetation will provide a more suitable habitat for younger life stages of fish such as sea trout, red fish, and hog chokers, which are species typically found in tidally influenced drainage systems. Overall, the proposed project will result in an improved habitat available for fish and wildlife. The project will retain as many of the existing mangroves as possible, thereby retaining the ecology of the mangrove wetlands. Reasonable assurance has been provided that the project will not adversely impact the value of functions being provided to fish and wildlife and will actually improve the ecological functions provided by the ditch. Quality of Receiving Waters Rule 40D-4.301(1)(e) requires that reasonable assurance be provided that the proposed ditch alterations will not adversely affect the quality of receiving waters such that water quality standards will be violated. The parties have stipulated that the project will not violate water quality standards set forth in rule chapters 62-522 and 62-550. Petitioner contends, however, that reasonable assurance has not been provided concerning possible impacts relating to surface water quality standards in rule chapter 62-302, the anti- degradation provisions of rule chapter 62-4, or the groundwater permitting and monitoring requirements of rule chapter 62-522. No evidence was presented by Petitioner that the activities will adversely affect the groundwater protection provisions of rule chapter 62-522. The proposed ditch alterations do not involve activities relating to these state water quality standards. Under BOR section 3.2.4, reasonable assurance must be provided for the short term and the long term that water quality standards are not violated. As to potential construction or short-term impacts, the proposed construction work involves the removal of sediments accumulated in the ditch, reconstruction of the ditch to be wider and deeper and within a more defined course, the addition of rip rap and geotextile fabric on the ditch bottom, and replanting of the ditch banks with salt- tolerant grasses and other vegetation to provide soil stabilization and erosion control. The proposed permit addresses the potential for turbidity during construction activities to cause short-term water quality violations by authorizing a temporary mixing zone and by requiring the installation of turbidity barriers and ongoing turbidity monitoring during construction. To further minimize the potential for any water quality violation during construction activities, construction methods will include the use of cofferdams or similar techniques to provide a barrier between the open water of the marina basin and the work being constructed within the ditch, which will be undertaken in segments starting at the eastern outfall at U.S. Highway 41. These provisions adequately address the potential for any short- term water quality impacts and are consistent with BOR provisions relating to short-term water quality. As to possible long-term water quality impacts, the evidence establishes that the proposed activities will not add any additional pollutants or new pollutant source to the receiving waters and will not cause or contribute to any violation of water quality standards. To the contrary, by removing existing stormwater sediments, which are known to contain pollutants, controlling sedimentation through collection of sediments in sediment sumps, and armoring the ditch channel to prevent erosion, water quality is expected to improve. The proposed sediment sumps to be added as a best management practice are appropriately sized to handle the approximately 5,600 pounds of sediments that accumulate annually in the ditch, as determined by annual pollutant load calculations provided by the County. The sumps will be located most efficiently at the outfall where the ditch begins. Preventing sediments from entering the receiving waters is one of the best things that can be done to improve water quality in nearby Sarasota Bay. Improvements in water quality are also expected to occur as a result of the addition of rip rap that will dissipate the flow energy, thereby allowing any remaining sediments to settle down, and the geotextile fabric that will keep soil in place and not allow it to float up. The sodding and replanting of the ditch embankments will also prevent side erosion from occurring, which erosion could add sediments in the ditch. Once constructed, the ditch will be regularly maintained by the County, with sediments to be cleaned out of the sump on a quarterly schedule. Any sediments settling on the rip rap and on plant vegetation would be cleaned out as needed, as determined by regular inspections. Petitioner contends that reasonable assurance has not been provided to show that water quality standards in rule chapter 62-302, and the anti-degradation provisions of rule chapter 62-4, will not be violated by the proposed activities. Its expert opined that the impact of the proposed activity on state water quality standards cannot be determined because no sampling of the receiving water was conducted, the permit does not require compliance monitoring, and the existing ditch sediments were not sufficiently analyzed. The evidence establishes that it can be reasonably presumed, without compliance monitoring or sampling, that the water flowing from the 46-acre urbanized watershed served by the ditch contains sediments and other pollutants typically associated with urban runoff. Most of the expected pollutants are contained within, or settle into the sediments that are deposited into, the ditch. By removing sediments through the use of adequately sized sediment sumps, slowing the water down to allow suspended solids to settle out within the ditch, adding geotextile fabric and rip rap covering the ditch bottom, establishing vegetation on the ditch sidebanks to prevent erosion, and implementing periodic maintenance through vacuum removal of collected sediments, the proposed activities will remove pollutants from the water flowing into the ditch and discharging into the marina basin and ultimately entering Sarasota Bay. Thus, it is reasonable to expect without sampling or monitoring that the proposed activities will improve water quality. In addition to identifying the positive benefits of the proposed activities, the evidence established that the proposed activities will not add a pollutant source to the receiving waters. This was not credibly disputed by Petitioner. Because the project does not generate pollutants, the proposed activities will not cause or contribute to a violation of state water quality standards. There is no reason to require pre-construction or baseline sampling to compare with post- construction sampling, as no pollutants will be generated. The removal of sediments and ongoing ditch maintenance will result in an improvement in water quality. Therefore, it can be reasonably assured without requiring sampling or monitoring that the activities will not result in any violations of state water quality standards. Secondary Impacts Rule 40D-4.301(1)(f) and BOR section 3.2.7 require that an applicant provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resource. As originally proposed, the project included activities extending beyond the end of the ditch and into the marina basin, where seagrasses and oyster beds are present. By avoiding impacts to these resources, the project also avoids any secondary impacts to manatees that may frequent Sarasota Bay. Turbidity control measures to be used during construction will also avoid secondary impacts to these resources. Petitioner provided no evidence that secondary impacts would occur as a result of the project. Reasonable assurance has been provided that the proposed activities will not result in any secondary impacts to the water resources. Public Interest Test Rule 40D-4.302(1)(a) requires an applicant to provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing certain criteria, or if such activity significantly degrades or is within an Outstanding Florida Water (OFW), that the activity will be clearly in the public interest. The proposed activities are not located within Sarasota Bay, a designated OFW. Petitioner provided no evidence that the proposed activities would significantly degrade that body of water. Therefore, the County need only demonstrate that the proposed activities are not contrary to the public interest. The parties have stipulated that rule 40D- 4.302(1)(a)6., which governs historical and archaeological resources, is not applicable to this matter. The remaining criteria at issue are whether the activity will adversely affect the public health, safety, or welfare or the property of others; whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; whether the activity will adversely affect the fishing or recreational values of marine productivity in the vicinity of the activity; whether the activity will be of a temporary or permanent nature; and the current condition and relative value of functions being performed by areas affected by the proposed activity. The evidence establishes that the project will reduce flooding during normal stages and remove sediments. By reducing the potential for roadway flooding and improving water quality through sediment reduction, the project will have a beneficial impact on public health, safety, and welfare, and will not adversely affect the property of others. Efforts were made to reduce or eliminate impacts to wetlands and other surface waters in the design of the project. Proposed activities will involve the removal of some of the existing mangroves. Based upon an analysis conducted pursuant to the Uniform Mitigation Assessment Manual, the unavoidable impacts to wetlands and other surface waters will result in a functional loss score of 0.08. Unavoidable wetland and other surface water impacts anticipated from the project will be appropriately mitigated through the use of a 0.08 credit from the Curry Creek Regional Offsite Mitigation Area (ROMA). The evidence demonstrates that the project will not adversely affect the value of functions provided by wetlands and other surface waters to conservation of fish and wildlife, including any endangered or threatened species, or their habitats and will actually result in an improvement in wetland and other surface water functions and habitat. The evidence establishes that the proposed activities will not adversely impact navigation or the flow of water and will not cause erosion or shoaling. The ditch reconstruction will prevent the possibility of shoaling at the downstream end of the ditch adjoining Petitioner's submerged lands by increasing the width of the ditch, slowing the water down, removing sedimentation along the ditch bottom, and reducing erosion through the planting of salt-tolerant sod and other vegetation along the ditch side banks. Petitioner presented no contrary evidence. No adverse impacts are expected to occur with respect to fishing or recreational values or marine productivity in the vicinity of the proposed activity. By removing sediments, the project will provide an improvement to fishing and recreational activities in the marina basin and Sarasota Bay. Petitioner raised concerns regarding the amount of floatable material that will be discharged from the ditch as a result of removal of mangroves. As provided in the permit plans, significant portions of the mangroves will remain undisturbed. Under current conditions, the ditch and mangroves do not prevent or trap all trash and floatables entering the ditch. On-site observations of existing conditions confirmed there is not a large amount of trash and floatables currently being retained by existing mangroves. Any temporarily retained floatables within the ditch area ultimately float out to Sarasota Bay with the tide. The evidence establishes that even with the removal of some mangroves, the project is not expected to result in an easier flow or increased amount of floatables entering the marina basin. Finally, because the project activities do not add floatable materials to the ditch, requiring the County to implement design changes to remove floatables would exceed what is necessary to meet the conditions for permit issuance. Petitioner also raised concerns regarding the levels of fecal coliform and the possibility of illicit connections to the stormwater collection outfalls to the ditch. The ditch is part of a MS4 permit that is regulated pursuant to NPDES Permit No. FLS000004 issued to the County. The NPDES permit governs stormwater discharges within the unincorporated portions of the County, the municipalities within the County, and that part of Longboat Key that is in Manatee County. The primary function of the MS4 permit is to address issues of water quality as they relate to stormwater discharges. The MS4 permit requirements would be the appropriate regulatory framework to address elevated fecal coliform, illicit connections, or other water quality concerns in the stormwater emanating from the drainage basin served by the ditch, and not the ERP regulatory program. Having weighed and balanced the six applicable criteria, and based upon the evidence presented, the County has provided reasonable assurance that the proposed activities will not be contrary to the public interest. Cumulative Impacts Rule 40D-4.302(1)(b) requires an applicant to demonstrate that the proposed activities will not cause unacceptable cumulative impacts on wetlands and other surface waters, as further described in BOR sections 3.2.8 through 3.2.8.2. BOR section 3.2.8 provides that if an applicant proposes to mitigate any adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets those impacts, then the regulated activity is considered to have no unacceptable cumulative impacts upon wetlands and other surface waters. Mitigation for unavoidable wetland impacts upon wetlands will be provided through the use of the 0.08 credit from the Curry Creek ROMA. The evidence establishes that the proposed mitigation fully offsets the impacts and is within the same drainage basin as the proposed impacts. No adverse cumulative impacts will occur with the project. Petitioner presented no contrary evidence of adverse cumulative impacts. Impaired Receiving Waters Petitioner contends that the project does not comply with the requirements of rule 40D-4.301(2) and related BOR section 3.2.4.5, which are applicable when existing ambient water quality does not meet state water quality standards. Rule 40D-4.301(2) provides that if an applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant shall meet the requirements of BOR section 3.2.4.5 and related sections cited in that provision. Together, these provisions require that where existing ambient water quality does not meet standards, the applicant must demonstrate that for the parameters that do not meet water quality standards, the proposed activity will not contribute to the existing violation. If it does contribute to the existing violation, mitigation measures will be required that result in a net improvement of the water quality in the receiving waters for the parameter that does not meet standards. The marina basin that is the receiving waters for the ditch has been identified by DEP as impaired due to levels of mercury in fish tissue. The evidence demonstrates that the project will not contribute to this water quality violation. Although not required to implement mitigation measures that will cause a net improvement of the levels of mercury in fish tissue, the evidence establishes that to the extent existing sediments contain mercury deposits, removal of the sediments reduce a source of mercury that can be ingested by fish in the receiving waters. Water Quality Certification Petitioner contends that Specific Condition No. 9 of the proposed permit, which expressly waives certification of compliance with state water quality standards, is contrary to Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and inconsistent with the legislative declaration of policy set forth in section 373.016(3)(f) and (j). As explained by unrefuted testimony of the District, the water quality certification provisions of Section 401 allow states an opportunity to address the water resource impacts of federally issued permits and licenses. Under Section 401, a federal agency cannot issue a permit or license for an activity that may result in a discharge to waters of the United States unless the affected state has granted or waived Section 401 certification. A state may grant, deny, or waive certification. Granting certification allows the federal permit or license to be issued. Denying certification prohibits the federal permit or license from being issued. Waiving certification allows the permit or license to be issued without state comment. Pursuant to rule 40D-4.101(4), an application for an ERP shall also constitute an application for certification of compliance with state water quality standards where necessary pursuant to Section 401. Issuance of the permit constitutes certification of compliance with water quality standards unless the permit is issued pursuant to the net improvement provision of section 373.414(1), or the permit specifically states otherwise. By letter dated February 2, 1998, to the United States Environmental Protection Agency, DEP has delegated to the state's five water management districts the authority to issue, deny, or waive water quality certifications under Section 401. DEP has also established categories of activities for which water quality certification will be considered waived. Under the DEP delegation, water management districts may waive water quality certification for four situations, one of which is when the permit or authorization expressly so provides. This is still current DEP direction. The types of permitting decisions which constitute the granting of water quality certification and the types of activities for which water quality certification could be considered waived are also addressed in the current Operating Agreement between the United States Army Corps of Engineers (USACE), DEP, and the five water management districts. According to both DEP guidance and the water management district agreement with the USACE, water quality certification will be considered waived when the permit or authorization expressly so states. The District most often expressly waives water quality certification for permits issued pursuant to the net improvement provisions and for projects that discharge into impaired waters. Proposed Specific Condition No. 9 of the permit expressly waives water quality certification due to the fact that the receiving waters are listed by DEP as impaired. Conditioning of the permit in this manner is consistent with DEP guidance and District practice under these circumstances. Although water quality certification for federal permitting review purposes is waived, the project must still comply with water quality requirements by demonstrating that the proposed activities do not cause or contribute to a violation of state water quality standards or if the activities contribute to an existing violation, that a net benefit is provided. The evidence establishes that the project will not cause or contribute to a violation of water quality standards and is not expected to contribute to the receiving water impairment of elevated mercury levels in fish tissue. While not required, the project is nevertheless expected to have a positive benefit on overall water quality and likely will reduce mercury levels in fish tissue by removing the sediments that contain metals such as mercury. The District's waiver of water quality certification is consistent with Section 401, the legislative declaration of policy set forth in section 373.016(3)(f) and (j), and applicable regulatory practices for Clean Water Act water quality certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the issuance of ERP No. 44040881.000 to the City and County, as joint permittees. DONE AND ENTERED this 7th day of May, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May 2013. COPIES FURNISHED: Blake C. Guillery, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Erika Ginsberg-Klemmt SRQUS, LLC 3364 Tanglewood Drive Sarasota, Florida 34239-6515 Achim Ginsberg-Klemmt SRQUS, LLC 3364 Tanglewood Drive Sarasota, Florida 34239-6515 Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637-6758 Alan W. Roddy, Esquire Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236-6808 Michael A. Connolly, Esquire Fournier, Connolly, Warren & Shamsey, P.A. One South School Avenue, Suite 700 Sarasota, Florida 34237-6014
Findings Of Fact This application is a request for a consumptive use permit for two wells located in Pasco County, Florida, within the Pithlachascotee Basin. The subject wells are also located in that area wherein the Board of Governors of the Southwest Florida Water Management District declared a water shortage in Order No. 76-3D, Southwest Florida Water Management District. The application seeks an average daily withdrawal of 95,000 gallons with a maximum daily withdrawal of 360,000 gallons. The use of this water is for public supply involving effluent disposal by on-site percolation and ponding. This-use was existing prior to January 1, 1975 with am average daily withdrawal for 1974 of 74,000 gallons. The testimony presented by staff members of the Southwest Florida Water Management District establishes that the consumptive use for which a permit is sought will not violate any of the criteria set forth in Subsections 163- 2.11(2)(3) or (4), Florida Administrative Code, except that the use may significantly induce salt water encroachment. No evidence was presented showing that the sought for consumptive use will, in fact, significantly induce salt water encroachment. In the twelve month period ending October, 1975, applicant's highest average daily withdrawal was 81,000 gallons. This time frame corresponds to that time frame referred to in paragraph 1 of Water Shortage Order No. 76-3D, Southwest Florida Water Management District. In view of Water Shortage Order No. 76-3D, Southwest Florida Water Management District, the staff recommends granting of the permit for an average daily withdrawal of 81,000 gallons and a maximum daily withdrawal of four times that figure or 234,000 gallons. The staff further recommends imposition of the following conditions: That the permittee shall install totalizer flow meters of the propeller driven type on all withdrawal points covered by the permit with the exception of those wells which are currently ganged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter, said pumpage to be read on a monthly basis and submitted quarterly to the District on April 15, July 15, October 15, and January 15 for each preceding calendar quarter. That all individual connections to the system be metered. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15, and January 15 for each preceding calendar year.
Findings Of Fact The Petitioner, Responsible Growth Management, Inc., is a not-for- profit corporation conceived and organized for the purpose of monitoring local governments within the geographic boundaries of Lee County for compliance with the requirements of the Florida Growth Management Act. Its members are residents of Lee County. Some of its members obtain their potable water from sources protected by Lee County Ordinance No. 89-30, as amended by Ordinance 90- 40 and 90-46, collectively referred to as the Wellfield Protection Ordinance (WPO). Other members obtain their potable water from sources the Petitioner contends are not protected by the WPO. The Petitioner contends that, for several reasons, the WPO is not consistent with the Lee County comprehensive plan. The Lee Plan Goal 41 of the Lee County comprehensive plan (the Lee Plan) provides in pertinent part: GOAL 41: GROUNDWATER. To protect the county's groundwater supplies from those activites having the potential for depleting or degrading those supplies. OBJECTIVE 41.1: WELLFIELD PROTECTION. By 1990 the county shall adopt a wellfield protection ordinance to provide regulations protecting the quality of water flowing into potable water wellfields. POLICY 41.1.1: The proposed wellfield protection ordinance shall be based on reliable technical data to ensure that adequate protection is provided. POLICY 41.1.2: The wellfield protection ordinance shall be amended whenever better technical data is developed and whenever additional potable wellfields are proposed. POLICY 41.1.3: The staff hydrogeologist shall review and comment on all development applications near public utility potable water wellfields, with particular attention to proposed land uses within a 10-year travel time from the well- heads. Goal 85 of the Lee Plan provides: GOAL 85: WATER QUALITY AND WASTEWATER. To ensure that water quality is maintained or improved for the protection of the environ- ment and people of Lee County. OBJECTIVE 85.1: Maintain high water quality, meeting or ex- ceeding state and federal water quality standards. POLICY 85.1.1: Sources of water pollution shall be identi- fied, controlled, and eliminated wherever feasible. POLICY 85.1.2: New development and additions to existing development shall not degrade surface and ground water quality. POLICY 85.1.3: The design, construction, and maintenance of artifical drainage systems shall provide for retention or detention areas and vegetated swale systems that minimize nutrient loading and pollution of freshwater and estuarine systems. POLICY 85.1.4: Developments which have the potential of lower- ing existing water quality below state and federal water quality standards shall provide standardized appropriate monitoring data. POLICY 85.1.5: New developments shall demonstrate compliance with all applicable federal, state, and local water quality standards. POLICY 85.1.6: No garbage or untreated sewage shall be dis- charged into coastal and interior surface waters. POLICY 85.1.7: The county shall initiate a wellfield protec- tion program to prevent the contamination of shallow wells by pollutant generating develop- ment including surface water runoff (see Goal 41). POLICY 85.1.8: Valid permits and inspection shall be required prior and subsequent to drilling operations for wells, elevator shafts, foundation holes, and test borings. POLICY 85.1.9: The county shall participate in a program to plug improperly constructed wells which are detrimental to ground water resources. Goal 87 of the Lee Plan provides in pertinent part: GOAL 87: WATER RESOURCES. To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability. OBJECTIVE 87.1: WATER SUPPLIES. Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems. POLICY 87.1.1: Natural water system features which are essen- tial for retention, detention, purification, runoff, recharge, and maintenence of stream flows and groundwater levels shall be iden- tified, protected, and managed. POLICY 87.1.2: The county shall recognize and encourage water and wastewater management, provided that such management does not exceed the natural assimi- lative capacity of the environment or appli- cable health standards. Appropriate water and wastewater management includes, but is not limited to, groundwater and aquifer recharge, spray or drip irrigation, gray-water systems, agricultural production, and other recycling techniques. POLICY 87.1.3: Freshwater resources shall be managed in order to maintain adequate freshwater supplies during dry periods and to conserve water. POLICY 87.1.4: Development designs shall provide for maintain- ing surface water flows, groundwater levels, and lake levels at or above existing conditions. POLICY 87.1.5: The county shall cooperate with the United States Geological Survey, South Florida Water Management District, and state agencies to develop an area-wide water resources plan emphasizing planning and management of water resources on the basis of drainage basins; and addressing the needs of the existing and potential built environment, natural hydro- logic system requirements, and freshwater flow impacts on estuarine systems. POLICY 87.1.6: The county shall continue to support a moni- toring program of existing baseline conditions of water resources. POLICY 87.1.7: The county shall cooperate fully with emer- gency water conservation measures of the South Florida Water Management District. The WPO Lee County Ordinance 89-30 provides for potable water wellfield protection. It establishes wellfield protection zones and sets out a protection zone map: showing the location on the ground of the outer limits of protection zones for present public utility potable water supply wells and wellfields which are permitted to pump 1,000,000 gallons of water per day or more. The Florida Cities-Waterway Estates Wellfield shall not be included within the protections established by this ordinance or depicted on the Protection Zone Maps. Chapter 10 of the ordinance is a "sunset provision" confirming that the ordinance was adopted "for the purpose of providing interim protection to existing potable water wellfields which are permitted to pump one million gallons of water or more per day" and explaining: The County is engaged in the creation of a Raw Water Management Authority to insure the protection of the public potable water supply. Potable water wellfields make up a portion of the available public potable water supply. In adopting this ordinace, the Board has taken the first step toward creating such an author- ity and providing an overall program for the protection of the public water supply. The wellfield protection ordinance is conceived as a part of that program. In order to insure that the wellfield protec- tion efforts of the County are incorporated into any overall program to protect the public potable water supply this ordinance shall expire and be of no further force and effect as to any acts occurring on or after September 1, 1991. The data and analysis supporting the Lee Plan clearly was based on the assumption of a 1 MGD threshhold. 5/ Section 4.05 of the Ordinance provides: Certain existing or proposed public and quasi-public land uses and activities may be declared exempt from the provisions of this Ordinance by the Board of County Commission- ers. This exemption shall be granted only upon a finding made by the Board in a public meeting that the existing or proposed land use or activity serves a public need which overrides the intent and purpose of this Ordinance and that it would be economically impractical or scientifically impossible for the land use or activity to comply with the requirements of this Ordinance or be relo- cated to an area outside of the protection zones established by this Ordinance. When declaring such an exemption, the Board of County Commissioners shall limit it to the extent necessary to enable the existing or proposed public or quasi-public land use or activity in question to be conducted within a protection zone while still serving the intent and prupose of this Ordinance to the extent which is economically practical and scientifi- cally possible. The Board may attach any con- ditions to the grant of any exemption that it deems appropriate. Section 3.01 of the Ordinance states: Four types of Protection Zone[s] have been established using scientific criteria relating to the physical characteristics of the water supply aquifer and the transport gradients caused by either natural forces or induced pumpage of the wellfields (see Appendix A)." The transport times associated with the Pro- tection Zones are designed so as to allow adequate time to carry out mitigating proce- dures to prevent wellfield contamination in the event of spillage of any Regulated Substance. Section 3.01.A. establishes and defines Protection Zone 1 as: "All land situated between the well(s) and the water table aquifer 6-month travel time zone demarcation." Section 3.01.B. establishes and defines Protection Zone 2 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table aquifer 1-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation. Sandstone 1-year travel time zone demarcation. Section 3.01.C. establishes and defines Protection Zone 3 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 1-year travel time zone demar- cation and the water table aquifer 5-year travel time zone demarcation. Sandstone aquifer 1-year travel time zone demarcation and the Sandstone aquifer 5-year travel time zone demarcation. Lower Tamiami 1-year travel time zone demarcation and the Lower Tamiami 5-year travel time zone demarcation. Section 3.01.D. establishes and defines Protection Zone 4 as: "All land situated between the well(s) and the planar geometric union of the largest of the following three travel time zones: Water table 5-year travel time zone demar- cation and the water table 10-year travel time zone demarcation. Sandstone 5-year travel time zone demarca- tion and the Sandstone 10-year travel time zone demarcation. Lower Tamiami 5-year travel time zone demar- cation and the Lower Tamiami 10-year travel time zone demarcation. Section 3.02.B. of the Ordinance provides essentially that, where the location of property and buildings is within more than one protection zone, the most restrictive protective zone applies. Section 4.04 of the Ordinance prohibits liquid waste and solid waste disposal in Protection Zones 1, 2, and 3. In those zones, it also prohibits wastewater effluent disposal, except for public access reuse of reclaimed water and land application (under the conditions set forth and as defined in Chapter 17-610, Part III, F.A.C.). As for the exception, it provides: "Where public access reuse is permitted the chloride content shall be no greater than 500 mg/l." In Protection Zones 1 and 2, it also prohibits "the use handling, production, or storage of Regulated Substances [defined in Section 4.03 of the Ordinance] associated with land uses or activities regulated by this Ordinance in quantities greater than those set forth in Section 4.02.A." and "[e]arth mining within a five hundred foot (500') radius of an existing wellhead." The only prohibition in Protection Zone 4 is against "any activity regulated by this ordinance which stores, handles, uses, or produces any Regulated Substance, in quantities greater than those set forth in Section 4.02.A., which does not obtain a valid operation permit as set forth in Section 6.02." Thus, the Ordinance does not by its terms prohibit landfills, sludge disposal or rapid rate percolation ponds in Zone 4. Section 4.03 of the Ordinance, entitled "Regulated Hazardous or Toxic Substances," defines regulated substances in part in terms of federal and state regulations that are referenced, but not reproduced, in the ordinance. Section 4.02 of the Ordinance provides that it applies only to a particular land use or activity, whether that land use or activity is classified as a residential or commercial use, when either the aggregate sum of all quantities of any one Regulated Substance, or the aggregate sum of all Regulated Substances, on a given parcel or in a certain building exceeds one hundred and ten (110) gallons if the substance is liquid, or one thousand, one hundred and ten (1,110) pounds if said substance is solid. It also provides that the Ordinance applies to all storage facilities for petroleum products which are not regulated by Section 376.317, Florida Statutes, or Chapter 17-61, Florida Administrative Code. Section 4.04 of the Ordinance also provides that, within the protection zones: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." Under Section 4.04 of the Ordinance, "partially treated sewage from residential septic tank systems" are not regulated in any of the protection zones. Section 4.05.B.5. of the Ordinance provides an: Exemption for Retail Sales Activities. Retail sales establishments that store and handle Regulated Substances for resale in their original unopened containers shall be exempt from the prohibition in Sub-Sections 4.04.A.1. and 2. provided that those estab- lishments obtain an Operating Permit pursuant to Section 6.02. No operating permit is re- quired in Protection Zones 3 and 4. Other Relevant Facts The WPO's Coverage. The support documentation in support of the Lee Plan was based on the assumption of a 1 MGD threshhold. The evidence as a whole does not suggest that was it contemplated at any time prior to adoption that the Lee Plan would require a wellfield protection ordinance that protects all potable water wellfields. 6/ Although the documentation in support of the Lee Plan focuses on wellfields permitted to pump 1 MGD or more and serves an indication that the Lee Plan does not require all potable wellfields to be covered by a protection ordinance, nothing in the Lee Plan or the supporting documentation establishes a clear intention to require the same protections for all wellfields permitted to pump 1 MGD or more. The focus of the WPO is on the protection of wellfields from contamination from the ground surface. Two wellfields permitted to pump more than 1 MGD are not covered by those protections. They pump from deep aquifers. The confining layers above those aquifers protect them from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into those aquifers be properly grouted so as to prevent contamination from the ground surface. As a result, they are adequately protected. 7/ The Florida Cities-Waterway Estates wellfield pumps from both the surficial aquifer and from a deeper aquifer known as the mid-Hawthorn. The confining layers above the mid-Hawthorn aquifer protect it from contamination from the ground surface. Other parts of the WPO, and other regulatory programs, require that abandoned wells that could possibly serve as a conduit for contamination into the mid-Hawthorn be properly grouted so as to prevent contamination from the ground surface. As for the wells pumping from the surficial aquifer, no party presented evidence on which findings of fact can be made on the issue whether it is fairly debatable to exclude the Florida Cities- Waterways wellfield from the WPO's protections against contamination from the ground surface. There was no evidence on which a finding can be made as to why they were excluded from the greater protections the WPO affords to other wellfields permitted to pump 1 MGD or more. 8/ The evidence was that 90% to 95% of Lee County's potable water supply is either covered by the WPO, with its 1 MGD threshhold and exclusion of the Florida Cities-Waterway Estates wellfield, or pumps from deep aquifers that do not need the WPO's protections from contamination from the ground surface. The Department of Environmental Regulation's so-called G regulations adopted in 1986 utilize a 100,000 gallon a day threshhold for coverage. This threshhold was selected to coincide with the jurisdiction of, and to extend coverage to all wells requiring a permit from, Florida's water management districts. The G-I regulations were successfully challenged and still are not in effect. The federal Environmental Protection Agency recently has criticized the G Although it is written in general terms to leave open the possibility of other similar applications, the evidence reflects that the primary purpose of the Section 4.05 exemption for "certain existing or proposed public and quasi- public land uses and activities" is to acknowledge and permit consideration to be given to the practical impact of possible future expansion of the regional airport located in Lee County. Since there are wellfields in the vicinity that possibly could be impacted by such an expansion, the exemption acknowledges that it might be more sensible, feasible, practical and economical to replace the wellfields than to move the regional airport. If this happens and, on a case- by-case basis, the County utililizes the exemption provision, it may be necessary to phase out the wellfields and to allow some degradation of parts of the wellfield, subject to close monitoring pending complete replacement of the wellfields. Alleged Inadequate Regulation of Pollution Sources. Rock and sand mine operations, which are prohibited within 500' of a wellhead, create open, water-filled holes in the ground. As the Petitioner correctly points out, mining operations can thereby create direct conduits that can lead contaminants to underlying aquifers. But there is evidence in the record to justify the WPO's treatment of rock and sand mines on several bases: first, these mines are regulated on a case-by-case basis through a permitting process; second, mines that have been permitted are relatively shallow and reach into, but do not penetrate, the layer confining the aquifers in the vicinity of the mines that are sources of potable water; third, the County has required as a condition of these permits that the pits be prohibited from serving as storm water retention ponds in the future so as to prevent contaminants from gaining entry to the potential conduit; and, finally, the evidence provides assurances that, even if contaminants somehow find their way into the pits, their concentrations would be low enough that sufficient "head" to penetrate the confining layers would not be generated. The WPO does not prohibit "zones of discharge." A "zone of discharge" is a deliberate decision on the part of a regulatory agency to utilize a limited part of the groundwater as part of the process of diluting contaminants. There was some expert testimony that, in a general and theoretical or academic sense, the concept of a "zone of discharge" is inconsistent with wellfield protection. They are not permitted in DER's G The WPO permits landfills, sludge disposal and rapid rate infiltration ponds in Protection Zone 4 (delineated by the ten-year travel time). The evidence was that landfills, at least, are subject to Department of Environmental Regulation (DER) and other regulation and permitting requirements that would provide adequate wellfield protection. There was no evidence or argument presented by any party to clarify how the other activities--sludge disposal and rapid rate infiltration ponds--are regulated. The Petitioner's evidence in general did not address the existence or absence of regulations (both County and other regulatory agencies) pertaining to the various activities of which it complains to rule out the possibility that they might meet the objectives and policies of the Lee Plan. The WPO does not contain its own stormwater regulations. Instead, it provides: "Any stormwater or surface water discharge . . . shall conform to existing S.F.W.M.D. and F.D.E.R. rules or as they may be amended or replaced." The Petitioner offered, as evidence in support of its position that the DER and SFWMD stormwater regulations are inadequate, expert testimony to the effect that the DER and SFWMD regulations are "performance standards," not "directed to groundwater monitoring, and it's not quality impact related." A "performance standard" requires certain things to be done with stormwater in the expectation that groundwater contamination would be eliminated or minimized. The Petitioner's witnesses related that DER decided that "protection of public water supply has to be protected to above and beyond a performance standard" and opted for specific water quality criteria in its G-I groundwater. But nothing in the Lee Plan requires utilization of the G-I rule approach, and the Petitioner's expert did not opine that failure to do so would render the WPO inconsistent with the Lee Plan. The Section 4.05.B.5 retail sales exemption presents a risk of contamination of a wellfield, but the risk is low. In all likelihood, it would take a fire or some other similar catastrophe for the possibility of actual harm to a wellfield to materialize from the small risk involved. Other County Measures Relevant to the WPO. The County has several programs, other than the WPO, and in addition to the Raw Water Management Authority mentioned in the WPO, 9/ that impact wellfield protection. It has a program to encourage (and in some cases require) the reduction and elimination of the use of septic tanks and package sewage plants. It is building a new sewer district. It has taken over the from DER the function of inspecting the installation of underground storage tanks and the remediation (clean up and repair) of tanks storing liquid petroleum products in an attempt to do the job better. There also was evidence that the County has restricted density in potential future wellfield locations and their recharge areas to one unit per ten acres. (The Petitioner's own witness testified that, other than an outright ban on septic tanks, density reduction is the only way to address the problem of septic tanks.
Findings Of Fact Tavernier Harbor, Inc. (Tavernier, Applicant) has applied for a dredge and fill permit seeking to install seven 40' X 18' boat slips and one 25' X 3' finger pier and to construct a total of 3,024 square feet of perimeter boardwalk, with the eleven six foot wide access walkways over a "mangrove fringe" at a boat basin in an unnamed canal lying at Section 4, Township 63 South, Range 38 East in the municipality of Tavernier, Monroe County, Florida. The site plan and permit application provides that the slips are to accommodate sport fishing boats There would be 564 linial feet of boardwalk waterward of the mangrove fringe surrounding the boat basin and 160 feet of boardwalk landward of that mangrove fringe, with one finger pier of the above dimensions. The landward side of Tavernier's development will contain a restaurant and bar with an adjacent parking area, a storm water drainage system as well as a sewage treatment plant. There will be a six foot high wall screening the parking area from the surrounding non-owned property and public roadways. Tavernier intends to use the property as a sport fishing harbor to moor seven boats as well as to provide transient dockage for users of its upland restaurant or for boat owners or users who travel by car to the upland facilities and parking area. Various environmental impact abatement or mitigation facilities and procedures are proposed to be incorporated in the project in its construction and operation as delineated more fully below. Tavernier owns the entire upland property surrounding and upon which the proposed project will be constructed and operated. Tavernier does not own the submerged land in which the proposed pilings for the boardwalk, slips and pier will be placed, but has received authority from the State of Florida Department of Natural Resources to proceed with the project. The proposed project will be located in a rectangular basin approximately 120 feet wide by 414 feet long, lying at the end of a "dead end" canal which connects with Tavernier Creek, some 2,000 feet away. The canal and basin are box cut (straight sides) into the bedrock with an average depth of approximately 10 feet. The waters of Tavernier Creek and the adjacent Atlantic Ocean lie in the Florida Keys Outstanding Florida Waters as designated in Rule 17-3.041(4)(i), Florida Administrative Code. Artificial water bodies, including canals, within the Florida Keys are excluded from the Outstanding Florida Water (OFW) designation by this rule. Artificial water bodies include canals which have been dredged, as this one has historically, as well as water bodies which existed naturally in whole or in part whose banks or boundaries have been artificially altered by filling. Such is also the case here. In this connection, an aerial photograph in evidence dating from the late 1940s indicates that natural surface waters may have existed at one time in certain portions of the area presently encompassed by the above described boat basin and canal, however, it was not established by competent testimony that the waters depicted in the aerial photograph were actually natural waters or what the depth of those waters might have been as opposed to the above found present average depth of the canal and boat basin at issue. There was credible testimony by persons experienced with the naturally occurring waters of the Florida Keys, which established that the natural waters shown in the 1940s aerial photograph in the vicinity of the boat basin were so-called "floc ponds," which characteristically have a depth of no more than one or two feet. Additionally, the boundaries of the water bodies depicted in the 1940s photograph are not coincidental with the present boundaries of the boat basin or canal system where the project is proposed to be constructed and operated. The basin in which the proposed project is to be placed and the canal connecting it to Tavernier Creek are not natural bodies of water and are instead artificial water bodies created by dredging, excavating and filling of the original boundaries. Therefore, the proposed project is not located in designated Outstanding Florida Waters. The land surrounding the canal and boat basin and owned by Tavernier is historically filled land with a relatively young growth of native vegetation surrounding the basin area. The majority of the boat basin perimeter is vegetated with red, black and white mangroves. White mangroves occur predominately on the upland, near-shore slope of the basin. The surrounding area off the project site is occupied by docks, boats and seawalls owned by non- parties. The boat basin area is non-bulkheaded, although there is a remnant bulkhead which is now largely vegetated. The Tavernier property is surrounded by three roads, the Overseas Highway, the Old Overseas Highway, as well as side streets on the other two sides of the property. The biota present in the basin and canal area involved consists primarily of small fish such as snappers and grunts and occasional small barracuda. Within the mangrove system itself there are algae colonies on the mangrove roots as well as gastropod mollusk systems, with some periwinkus snails on the water bottoms and numerous types of analids, jellyfish, cassipia and tulip snails, as well as various types of minnows and other small fish. Most of the aquatic life in the basin canal system is associated with the vegetative mangrove fringe which provides some structural relief in the water and thus a beneficial marine habitat system for these types of aquatic life. There are no seagrasses associated with the project site or the nearby areas in the artificial canal. There will be no adverse impact on seagrasses. There is presently a healthy biological diversity of life forms in the canal and basin system. Water Quality The Water Quality Rules germane to this proceeding dictate that water quality impact of the proposed project in the basin and canal system must be examined with regard to short term and long term water quality impacts. Short term water quality impacts of the proposed project only involve potential turbidity generated by construction, that is, by the driving of pilings into the bottom substrate to support the finger piers, boardwalks and to create the boat slips. The Applicant agreed at hearing to alleviate such a potential impact by the installation and use of turbidity curtains around the entire construction area during installation of the pilings and decking for the boardwalk, deck and finger pier. In view of the established fact that the driving of the pilings will not cause the suspension of a significant amount of turbidity, reasonable assurances have been provided that this pile driving activity, coupled with the use of turbidity curtains, will result in no violation of state water quality standards as to this pollution parameter. This method of construction and the use of turbidity curtains should be incorporated in the permit as a mandatory condition. The long term water quality impacts which must be examined here are associated with the use of the basin, and to some extent the canal, by boats with the attendant potential for pollution associated with boating activities, as well as the long term pollution effect of storm water runoff from adjacent upland areas into the basin. In this regard, storm water now entering the basin carries with it an indeterminate amount of pollutants associated with surrounding, inhabited upland areas and surrounding automobile roadways. The project as now proposed will alleviate much or all of the present storm water runoff pollutant effect and will prevent any additional such effect occasioned by the installation and operation of the project with regard to upland- originated pollutants. This is because the Applicant has proposed to install, pursuant to its storm water drainage plan, a reverse gradient configuration around the perimeter of the basin on the upland which will divert storm water back on to the upland and prevent it from entering the subject basin. The storm water would be directed into approved storm water filtration basins. Thus, to the extent that storm water may be exerting a pollutant effect on the basin and canal at the present time, the project as proposed represents a marked improvement. The only other potential long-term source of water quality degradation from the proposed project, concerns the pollution that may emanate from the use of boats in the basin, canal and dockage facilities. This potential source will be offset by the diversion of similar type oil, grease and other pollutants already entering the basin from the upland by the storm water diversion and filtration system as well as by the preservation of the present mangrove fringe. The mangrove fringe is quite important to alleviating water quality impacts due to present pollution or due to increased boat traffic as a result of the installation of the project. Mangroves provide an important function in this regard in that their root systems serve to up- take excessive nutrients, heavy metals and other pollutants from the water into the mangroves, thus serving as an important natural filtration system. Additional methods of alleviating the water quality impacts due to pollution from boats and associated activities consist of establishing certain permit conditions, described below, which will prevent boat operation and related activities from lowering ambient water quality and requiring a continuous, long-term operation permit by which those conditions may be enforced, associated with requiring an extensive, water quality monitoring program. That program will require site modification and ultimately even removal of the project if water quality parameters are not met in the long term. Increased boat operation in the basin can result in discharges of hydrocarbons, toxic metals (chiefly from boat bottom paint), organic debris (chiefly associated with disposal in the water of fish cleaning offal) as well as the deposition of detergent material in the waters involved. Additionally and importantly, the presence of boats with heads can result in sewage spills or discharges. It was established, however, that boat use in the canal and associated pollution will not be solely due to the Applicant's proposed project. The canal margin is already almost entirely developed with approximately forty developed lots, most of which have boats associated with them with attendant docking facilities. Many of the same water quality contaminants such as hydrocarbons and greases, heavy metals, nutrients and organic material that would be expected from boat operations and fish cleaning are already present in the canal and in untreated storm water entering the canal and basin system from adjacent roads and parking areas. These contaminants will be reduced somewhat by the installation of the storm water diversion and filtration system at the basin. Additionally, as mentioned above, the proposed project will retain the vast majority of the present mangrove fringe filtration system surrounding the basin. The mangrove fringe will continue to serve its function of filtering and absorbing nutrients and other contaminants related to both storm water runoff and boat operation, which are now or will be entering the system. The Applicant has agreed to the imposition of several permit conditions which will control boat operation pollutants. These include the prohibition of any boat fueling facilities and boat fueling by private owners, the prohibition of "live aboard" boats which require frequent sewage pumpout and pose a substantial risk of illegal sewage discharge, the prohibition of boat hull cleaning and major boat maintenance (other than minor engine adjustments), and the mandatory requirement of an oil spill containment and removal apparatus which must be kept and maintained on the site. An extensive pre-construction and post-construction water quality monitoring plan will be required because of the paucity of background data available concerning existing water quality in the basin and canal. Such monitoring is necessary to determine the effectiveness of the storm water management plan and structures, as well as all the other permit conditions. The applicant has agreed to the implementation of such a long term water quality monitoring plan. Additionally, the Applicant will be required to obtain a long term operating permit in addition to the construction permit, which will allow for continuous Department review of the project and its operation. If water quality standards are not consistently maintained, the permittee will be required to change the marina design, management or operation to correct the problems. These changes can include the reducing of the size and number of boat slips and dockage facilities and ultimately even the physical removal of the proposed project and the non-renewal of the operating permit. In this connection, the evidence of record reveals that the ambient water at the site occasionally is violative of state water quality standards for dissolved oxygen. This is characteristic of such dead end canal and basin systems which are characterized by a very low flushing rate. This canal system flushes such that approximately 90 per cent of the waters therein are exchanged in approximately 5 1/4 days. This is quite a low flushing rate which tends to concentrate pollutants over time. This, however, is an ambient or natural condition in the canal as it presently exists and is not a water quality problem occasioned by the proposed project. The Department has heretofore followed a policy of granting permits where such a parameter is sometimes not in accordance with state water quality standards and indeed, with regard to the instant project, the permit conditions which will be implemented and enforced, especially including the upland sewage and waste disposal system and storm water management and disposal filtration system have been reasonably shown to assure an overall improvement in the water quality in the basin area involved. In addition to prohibiting live aboard boats as a means to protect water quality in the face of boat traffic in the basin area, the Applicant will construct an upland, approved and permitted sewage treatment and disposal facility. Approved and properly maintained pump-out facilities for boat- generated sewage are also proposed and must be required. The Applicant also proposes dockside fish cleaning facilities to help ensure that fish cleaning debris is not deposited in the waters of the basin and canal. In view of the evidence of record which establishes that any other disposal area, such as the open ocean, for fish remains is a substantial distance from the project site, dockside fish cleaning facilities will not ensure that fish debris is not deposited in the waters of the basin because dockside fish cleaning facilities are too proximate to the waters sought to be protected. Accordingly, the evidence of record reveals that, for reasonable assurances to be provided that fish cleaning debris will not be deposited as an organic, nutrient pollutant in the waters of the basin, any fish cleaning facility should be placed a significant, reasonable distance from the dockage facilities on the upland with discharge of the waste into an appropriate waste disposal system, which the Applicant proposes to install. Such should be an additional condition to granting a permit. In addition to the above, there were no other water quality issues presented in this proceeding. In view of the fact that water quality may be enhanced by installation of the project with the above conditions and proposals by the Applicant, the project as presently proposed will reasonably assure that state water quality standards are not violated by the fact of the installation and operation of the proposed project and attendant boating activities. Public Interest Standards Section 403.918(2), Florida Statutes It was not established that the proposed project will adversely affect the public health, safety or welfare or the property of others in a significant way. The main concern regarding the "public welfare" or "property of others" was feared adverse impacts of increased boat usage in the canal with attendant wakes and erosion of shoreline property. These concerns are alleviated by two factors. First, almost all the canal front property involved is presently seawalled, thereby substantially reducing the impact of waves from boats. Secondly, the Applicant has agreed and the Department will require, that the Applicant post "idle speed--no wake" signs at both the entrance to the canal and at the end of the canal at the basin within the Applicant's own property. Additionally, the canal boundaries are largely developed with approximately 40 developed lots with approximately as many attendant boats already using the canal. The relatively small number of additional boats that the proposed project will entail will not significantly add to any erosion problem due to boat wakes, which will be alleviated in any event because of the fortified shorelines already existing and because of the use of the signs with attendant citizen reporting of excessive boat speeds to the Applicant's management as well as to the Department of Natural Resources Marine Patrol. In conjunction with the above-discussed monitoring plan to be imposed as a condition to the permit consideration should be given by the Department and the Applicant to obtaining necessary authority (i.e. from the Department of Natural Resources and the U.S. Army Corps of Engineers) for posting buoys or other similar partial obstruction devices at strategic locations in the canal channel to prevent boats from having the ability to operate on a straight course at high throttle levels when traversing the channel. This, too, should be a condition incorporated in the permit. The project will not adversely affect the conservation of fish and wildlife, including endangered, threatened species or their habitats. The evidence reflects that on rare occasions manatees have been seen in or in the vicinity of the canal, although the evidence does not reveal that this is truly a manatee habitat area. In conjunction with the posting of idle speed--no wake signs, the Applicant should be required to post signs indicating that it is an area frequented by manatees and urging attendant caution in boat operation. Although there will be some net loss of existing mangroves at the basin, at least 90 percent of the extant mangroves will remain. The record reveals that for unknown reasons, and at a time prior to the institution of this proceeding, the Applicant removed or cut some of the existing mangrove growth at the basin site. The permit should be conditioned upon the Applicant replanting or allowing regrowth of the mangroves so removed or altered. Additionally, it having been shown that the walkways between the landward deck and the boardwalk supported by pilings in the water of the basin are for pedestrian use, it was not established as necessary that the walkways should be six feet wide and of the total number depicted in the Applicant's design and plans. The presence of the boardwalks connecting the landward deck and the waterward boardwalk are the direct cause of ten percent removal of the existing mangroves due to the mangroves beneath the walkways being shaded from the sunlight. Accordingly, the Applicant, as a condition to the permit, should be required to either redesign the walkways so that they are significantly narrower than those proposed or reduce the number of these bridges over the mangroves by 50 percent so that only a maximum of approximately five percent of the extant mangroves will be ultimately removed or destroyed. Despite the fact that manatees have been seen in the canal, the habitat in the canal and basin is not favorable for attracting manatees and, additionally placement of the marina away from a pristine natural area as is the situation here will generally tend to have much less of an adverse impact on fish and wildlife than if the marina were placed in a pristine natural area often frequented by manatees and other endangered species. The proposed project will not adversely affect navigation or cause harmful erosion or shoaling. The evidence establishes that the small numbers of additional boats using the canal as a result of the project will not cause additional navigation problems of any significance. The possible erosion caused by boat wakes already is an existing condition and the small number of boats which would be added to present traffic in the canal as a result of the project will not substantially exacerbate any problem that exists, especially in view of the conditions which will be imposed and are discussed above. The proposed project will not adversely affect fishing, recreational values or marine productivity in the vicinity of the project. For the reasons referenced above, there will be no water quality problems occasioned as a result of this project provided the conditions found to be necessary herein are imposed on the permit, the project construction and the project operation. If these are accomplished, there will be no adverse effect on fish and wildlife. Fishing, recreation and marine productivity in the area in turn will not be adversely affected from a water quality standpoint. Additionally, the proposed project will have the positive impact of enhancing the public recreational value of the area since it will offer public facilities for people seeking to navigate the state waters in the vicinity of the project by the provision of a small amount of additional dockage space. Maintenance of the mangroves in the manner depicted above will maintain and indeed, to a small degree, enhance marine productivity. The members of the public presently using the canal and basin area to fish, swim or perform similar activities will be able to continue doing so. In short, the project will not adversely affect marine productivity. There is no evidence of record to indicate that the project will adversely affect historical or archaeological resources. Concerning the "permanence" criteria under the above-cited statutory subsection, the project will indeed be of a permanent nature. The operating permit which the Department will require, will determine, with the conditions incorporated in it, whether or not the project remains a permanent structure. That is, if the various water quality parameters and the various considerations in the above-cited public interest provisions are not complied with, alteration of the project or even ultimate removal of the project may be required. Concerning the public interest criteria regarding current conditions and relative value of the functions being performed by the area involved, the project as proposed to be constructed and operated will not cause any adverse impact on current conditions and relative value of the resources of the project area as a functioning habitat for marine life. The functions and value of the area as a habitat for fish and wildlife and as an area of marine productivity will be unaltered in its post-development state, provided the conditions referenced herein are imposed, especially those related to protecting water quality from the impacts of boat operation, human wastes and waste attendant to fish cleaning operations. Cumulative Impact There have been no similar permit applications submitted to the Department in the past five years for projects in this canal and basin system. In fact, there have been only three or four shoreline dockage facilities permitted by the Department within a four square mile area in the vicinity of the proposed project. There are approximately 40 lots along the canal leading up to the Tavernier Harbor basin. The majority of these lots have already been developed with single family residences and the majority of them already have seawalls with dockage capability. The development of the few remaining undeveloped lots along the canal, coupled with the installation of the proposed project, should not significantly add to the cumulative effect upon water quality and the public interest parameters discussed above. There is only one other pending dock permit application received by the Department for any area near the proposed project. Thus, there will not be any cumulative adverse effect causing violation of any of the water quality or public interest standards at issue if the proposed project is built and operated and exists with other proposed or existing facilities In addition to the above conditions, Tavernier Harbor, Inc. has agreed to devise a contingency plan concerning oil spill containment and removal to be utilized in the event of a spill, which shall be submitted to the Department for review and changes as necessary prior to the commencement of the project's construction. The Applicant has agreed that all perimeter docking areas will be aligned waterward of the mangroves, whereas the restaurant deck will be placed landward of the mangroves. The Applicant has agreed to conduct water quality monitoring of the canal to include a minimum of one year pre- construction data and a minimum of two years of data collected after the project has been constructed and is operating. The Applicant will apply for a long-term operating permit for the mooring facilities and agrees to continue - monitoring and to implement necessary changes to marina design or management as directed by the Department in order to maintain water quality standards on a permanent basis. Tavernier Harbor, Inc. will also institute, prior to issuance of the operation permit, a maintenance program to permanently ensure removal of floating debris from the basin and project site. The Applicant has agreed and should be required to provide sewage pump out and treatment facilities capable of providing upland disposal and treatment of sewage and will provide an upland area well removed from the basin waters and the mangrove fringe for the conducting of fish cleaning operations and disposal of related waste material. The Applicant has agreed, and the permit should be conditioned upon, the allowance of only seven permanently moored sport fishing boats at the site and restriction of the use of the boardwalk waterward of the mangroves to only be used by "transient boats," with no permanently moored boats docked thereto. In summary, it has been established that the project will not degrade state water quality standards or the public interest criteria referenced above. The basin at the project site presently meets state water quality standards with the minor exception of occasional deficient levels of dissolved oxygen which naturally occur at the site.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Tavernier Harbor, Inc. for the dredge and fill permit sub judice be granted, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2057 Petitioner's Proposed Findings of Fact: 1-3. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted as to the first two sentences but not as dispositive of the material issues presented. Accepted except for the first and last sentences which are contrary to the preponderant evidence. Rejected as to its material import. Rejected as contrary to the preponderant evidence and as subordinate to the Hearing Officer's finding on this subject matter. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Respondent Tavernier Harbor, Inc.'s Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as subordinate to Hearing Officer's findings. 7-13. Accepted. 14. Rejected as subordinate to Hearing Officer's findings. 15-20. Accepted. 21. Rejected as subordinate to Hearing Officer's findings. 22-23. Accepted. Respondent Department's Proposed Findings of Fact: 1. Rejected as subordinate to Hearing Officer's findings. 2-30. Accepted. COPIES FURNISHED: James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. 317 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
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 Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts contained in the Prehearing Stipulation, the following relevant facts are found: The Gardinier Applications. l. The East Tampa Chemical Plant (plant) operated by Gardinier is located on approximately 3,500 acres of land owned by it at the mouth of the Alafia River and the Hillsborough Bay. The facilities have been there since 1924, and the withdrawal of water utilized to operate the plane predates the consumptive use permitting process. The plant manufactures various fertilizer products, including sulphuric acid, phosphoric acid, diammonium phosphate, granular triple superphosphate, run of pile triple superphosphate, byproducts of phosphoric acid, as well as fluosilic acid and sodium silicofluoride. The phosphoric acid products are used by farmers to grow corn, soy beans, and wheat, and fluosilic acid and sodium silicofluoride are used by municipalities to fluorinate drinking water. When the plant is fully operating, Gardinier employs 950 people with a payroll of $22 million a year. The company pays annual property and other taxes of $1.5 million a year and annually purchases approximately $25 million in materials and equipment in Hillsborough County. Garciinier was recently purchased by Cargill, Inc. after a bankruptcy proceeding. In order to manufacture its products and operate the plant, Gardinier uses both salt water and fresh water. The salt water comes from salt water wells located on the plant's property, and has been used since 1924 for cooling purposes. It is used for once-through, non-contact cooling of sulphuric acid and is then discharged into the Alafia River at the Hillsborough Bay. Due to the naturally occurring radium in this discharged salt water, Gardinier intends to discontinue using its salt water wells and utilize fresh water for all its cooling requirements. This will require the construction of a fresh water cooling tower, for which a permit is currently being sought and which will take about two years to complete. Gardinier's existing CUP No. 7601530 for its salt water wells permits an average annual withdrawal of 56,260,000 gallons of water per day (gpd) and a maximum daily withdrawal of 64,890,000 gpd. Despite expansions in its plant over the years, the amounts of salt water and fresh water required has decreased. Gardinier's present renewal application for its salt water withdrawals proposes a reduction to an average annual rate and maximum daily rate of 31,968,000 gpd . Fresh water is used at Gardinier's plant as boiler feed water, for manufacturing of product or process water, cooling and potable needs. This water is obtained from Buckhorn Springs and Lithia Sprlngs, both wholly owned by Gardinier. Gardinier purchased 148 acres at Buckhorn Springs in 1947, and 160 acres at Lithia Springs in 1967, including the spring pools, and has been withdrawing water from those springs since those times. Lithia Springs is leased to Hillsborough County for recreational purposes. Gardinier's withdrawals from the springs have been gradually reduced since 1977. The original CUP No. 7601532 issued in 1977 for Buckhorn Springs authorized an annual average withdrawal of 2,176,000 gpd with a maximum daily withdrawal not to exceed 2,370,800 gpd. Gardinier requested a reduced withdrawal s renewal application, with an annual average and a maximum daily rate of 1,440,000 gpd. Gardinier's original CUP No. 7601533 for Lithia Springs issued in 1977 was for 5,840,700 gpd average annual withdrawal and 5,894.000 gpd as a maximum daily withdrawal. Gardinier's renewal is for a reduced average withdrawal rate of 5,822,000 gpd and a maximum daily withdrawal of 5,904,000 gpd. The increased maximum quantity is for the well used for the concession stand at the park. Withdrawals from Gardinier's salt water wells consists of comingled waters from the intermediate aquifer, the Floridan aquifer and Hillsborough Bay. The water is salty, high in chloride and its constituents are very similar to bay water. The evidence is inconclusive as to whether Gardinier's operation of its salt water wells for a period of over 60 years has caused or contributed to salt water intrusion in thc area of the plant. There is some evidence that the pumping may have been beneficial in reducing salt water encroachment along the coast due to the release of pressure on the deeper Floridan aquifer which allows fresh water to move into the system. In any event, if there has been an adverse effect from more than 60 years of pumping, the effect would be reduced by the reduction in withdrawals which Gardinier now seeks in its permit renewals. While Gardinier is the largest use of water in the plant area, there are domestic wells in the vicinity of the plant. Computer modeling demonstrates that present withdrawals from the salt water wells will affect the potentiometric surface at the plant's boundary by less than five feet and create less than a one-foot drawdown in the water table. The greater portion of the water pumped is recharge water from the bay. Any reduction in the amount of pumping would have a positive impact on the potentiometric surface, will decrease any impact on nearby domestic wells and will allow the quality of the water in domestic wells to either remain stable or improve. Since the potentiometric surface in the plant's vicinity is already at sea level, it is SWFWMD's policy not to take into account the regulatory criterion relating to the lowering of the potentiometric surface below sea level. SWFWMD has not established regulatory levels for the rate of flow of streams or watercourses, the potentiometric surface or surface waters in the vicinity of the plant. Salt water marshes, estuarine systems and uplands exist to the north, south and east of the plant. Any adverse ecological impact suffered by these systems are more attributable to cultural impacts than to a less than one foot lowering of the water table. Since Gardinier's withdrawals have been occurring for over 60 years, it is likely that biological communities in the area have adapted, and the proposed reduction in pumping have no additional adverse effect. In order to satisfy its requirements for fresh water of reliable quantity and quality, Gardinier has been withdrawing water from Buckhorn Springs for almost 40 years and Lithia Springs for almost 20 years. The boilers and cooling towers at the plant are designed to utilize water of that quality and temperature. But for Gardinier's withdrawals, these spring waters would flow into the Alafia River and eventually into the bay. The spring water from Lithia is pumped through a pipeline to Buckhorn Springs, comingles with the Buckhorn spring water and is pumped some 1< miles through a pipeline to the chemical plant for use as boiler feed water, process water, cooling water and sanitary and drinking water. During full production periods, Gardinier uses all the water withdrawn from Lithia and Buckhorn Springs. Because of cutbacks in production in 1983, Gardinier installed a pressure relief valve to alleviate pressure problems in the plant during times of reduced production. This allowed water to be discharged into the Alafia River from the Lithia pipeline without passing through the plant. Over the past two years, approximately .5 to 1.2 million gallons of water per day has passed through the pressure relief valve and discharged in the Alafia River at a point downstream from where it would have entered the river naturally. Gardinier is presently in the process of developing an alternative pressure control system which would permit it to take from Lithia and Buckhorn Springs only the amounts actually required at the plant. Lithia Springs and Buckhorn Springs are typical karst artisian sink springs. The geology and hydrogeology of the area of both springs demonstrates a series of fault features, where solid rock has fractured and the fractures extend into the Floridan aquifer. Solutioning occurs and a sinkhole system is created. The springs are discharge points of the Floridan aquifer. These aquifer waters discharge into the springs from artisian pressure. An examination of various well logs and literature on Florida geology leads to the conclusion that the water in Lithia Springs and Buckhorn Springs withdrawn by Gardinier are supplied primarily by the Floridan aquifer with very minimal contribution from the intermediate or surficial aquifers. The withdrawals at both springs constitute ground water, as opposed to surface water, withdrawals. As noted above, Gardinier owns 148 acres at Buckhorn Springs and 160 acres at Lithia Springs. There are 350 feet from the edge of Buckhorn Springs to the nearest property line and 400 feet from the edge of Lithia Springs to the nearest property line. Pump tests designed to determine the lateral and vertical extent of the impact from the stress of pumping in amounts far greater than usual demonstrate that the impacts from withdrawals do not extend beyond 300 feet from the edge of either spring. After stabilizing the springs and pumping at a greater rate than normal, the pump tests revealed only a 1.25 foot decline in the spring boil, a 1.06 foot decline in the spring pool and no appreciable change in the water table or surface water at Buckhorn Springs. The impacts from pumping at Lithia Springs were even more minimal -- a two inch decline in the water level of the spring boil and a decline in the pool level of less than one inch. These results lead to the conclusion that the artisian systems are not adversely affected by Cardinier's pumping at Buckhorn or Lithia Springs. Chemical analyses reveals that the quality of the waters at Buckhorn and Lithia Springs has not been adversely affected by Cardinler's pumping or withdrawals. The proposed withdrawals will have no adverse effect upon vegetation in the areas of Lithla or Buckhorn Springs. There will be no inducement of salt water encroachment as a result of Gardinier's withdrawals from Lithia or Buckhorn Springs. SWFWMD has set no regulatory levels pertaining to the rate of flow of streams or watercourses, the level of the potentiometric surface or the level of surface waters in the areas of Buckhorn or Lithia Springs. It is the policy of the SWFWMD not to require extensive testing or monitoring when an applicant is applying for a renewal of a presently existing legal use, particularly when the renewal is for a permit with reduced quantities. In order to determine the future adequacy of the water supply available from Lithia and Buckhorn Springs, as well as to determine the effect of a diminuition of the outflow by outside sources, it would be beneficial to place continuous recording gases on spring flow, spring height and pumpage at those spring sites. Many industries are capable of and do now utilize reclaimed, recovered or recycled water in their plant operations. Dependent upon the plant's equipment and ;he quantity and quality of the reuse or recycled water, such water can be utilized in chemical plant operations for such nonpotable uses as cooling water, boiler feed and process water. A source of reuse water is treated effluent from advanced wastewater treatment facilities. Several new County wastewater treatment plants are presently in the planning stage, but none are currently on line nor are there pipelines in existence which could supply reuse water to Gardinier's East Tampa Chemical Plant. Use of the existing pipeline for reclaimed or reuse water would contaminate Gardinier's existing fresh water supply from the springs. Considering the quantity and quality of its present source of fresh water, reuse water has no technical or economic advantage to Gardinier. Its plant equipment would have to be retrofitted, a new distribution system both within and outside the plant would be required and experience by other industrial users has demonstrated problems with scaling, increased temperature and the consistency of water quality. When weighing the potential for reuse water in plant operations, a large factor to be considered is the economic feasibility, including the cost of treatment, maintenance costs, the cost of the current supply, availability, etc. While the reuse of water should be encouraged as a conservation measure, the economic feasibility of such use must be considered. Gardinier has studied and has agreed to continue to study the feasibility, both technical and economical, of reuse water for some of the plant operations. The Authority's and County's Application. The Authority is a five member governmental entity consisting of Pasco County, Pinellas County, Hillsborough County, the City of Tampa, and the City of St. Petersburg. Its obligations are to provide an adequate and dependable source of supply for all citizens within the tri-county area and to do so without concentrating withdrawals to the point where they would have an adverse environmental or hydrological impact. The Authority first began operating public supply wellfields in 1978. Currently, the Authority operates the Cypress Creek Wellfield, the Cross Bar Ranch Wellfield, the Starkey Wellfield, the Section 21 Wellfield, the Cosme-Odessa Wellfield, and the Northwest Hillsborough Wellfield. The permitted average annual withdrawal rate and maximum daily withdrawal of these wellfields are 30 million gallons per day (mgd)/30 mod for Cypress Creek, 30 mgdt45 mgd for Cross Bar, 8 mgd/15 mgd for Starkey, 13 mgd/22 mgd for Section 21 and Cosme-Odessa and 8.8 mgd/18.q mgd for the Northwest Hillsborough Wellfield. In addition, the Authority has a consumptive use permit to withdraw water from the Tampa Bypass Canal at a rate of 20 mgd average annual withdrawal and 40 mgd maximum daily withdrawal. The south central Hillsborough County region and service area has been described in this proceeding as an area bounded by Interstate ~ on the north, by Valrico on the east, by the Little Manatee River on the south and by Tampa Bay on the west. The area is largely a rural area, but has several population centers, including Brandon, Ruskin, Apollo Beach, Sun City and Riverview. The County's current public water supply facilities in the south central region comprise some 75 dispersed wells permitted under 8 different CUPs. The evidence is conflicting and inconclusive as to the actual number of existing wells and the quantities presently permitted. Some of the presently permitted wells have been converted to monitoring wells and others have been plugged. The Authority and the County have concluded that it is no longer possible to continue to use the County's existing public water supply facilities in the south central area. Consequently, they have applied for a CUP which would renew and consolidate their existing 8 CUPs and add 17 new wells to be located at a regional wellfield. It is the intent of the Authority and the County to continue using the existing wells during construction of the planned wellfield and then to discontinue their use and serve the entire area from a centralized wellfield. The amended application requests total average annual combined permit withdrawals of 24,100,000 gpd and total maximum daily withdrawals of 44,600,000 gpd. The current, existing Brandon water supply system is comprised of some 30 dispersed wells capable of producing from 7 to 10 mgd of good quality water. However, there are problems in this system, as well as the smaller systems serving Sun City, Apollo Beach, Ruskin and Riverview. The Brandon wells have individual chlorinators and, on occasion, suffer pressure problems. Because of their dispersed locations, the County's operators can only visit each well site once a day. If a problem occurs after the operator's visit, it will not be discovered until the following day and recipients of the water may use water that has not been disinfected. It is difficult to monitor and sample the well waters due to their dispersed locations. The existing system relies totally on local wells for local distribution as there is a complete lack of transmission facilities. The systems are hydraulically isolated and there is no transmission capacity within the Brandon system at all. While there is one intertie with the City of Tampa's water system, this is not used primarily because the City has its own supply problems and also because the City's water treatment is different than and incompatible with the County's water treatment. Some of the existing wells located south of the Alafia Rlver are old, in poor repair and violate Florida's drinking water standards for total dissolved solids, sulfates, fecal coliform and occasionally odor. Many of the existing well sites are not secured and their locations are such as to constrain access to the larger repair equipment. The existing system has inadequate storage capacity. On the basis of present demand for water within the system, there should be at least 10 million gallons of available storage. The current storage capacity is slightly more than 4 million gallons and not all of this storage is available. A storage tank is generally kept at least half full to provide for local fire demand and, therefore, the effective storage capacity of the existing system is about 2 to 3 million gallons. The existing water supply system lacks the capacity for both adequate fire protection and adequate emergency pumping. Retrofitting or refurbishing the existing system with newer or more dispersed wells would simply perpetuate the existing inadequacies in the system. For these reasons, the Authority and the County have determined that the only feasible alternative to solve the inadequacies and to meet the current and future demand is to provide a centralized system of transmission lines, centralized master pumping facilities and a centralized source of water supply. As the wellfield production wells, pump station and transmission lines are constructed and become operational, the existing wells will be either taken out of service or will be utilized as monitor wells. It is estimated that the construction of the proposed wellfield will take from 18 to 24 months. In reaching a determination as to the location and design of the proposed south central wellfield, the Authority and the County analyzed various alternatives. Studies and testing were done regarding the placement of a regional wellfield in the Brandon area. However, testing demonstrated that the potential yield would be very low in that area and could cause the upconing of highly mineralized water. Tests conducted further to the east, in the Medard area, demonstrated a productive aquifer with good water quality. However, because large amounts of water are withdrawn from that area by strawberry farmers, particularly during freezing weather, that site was found unsuitable for a regional wellfield. The Authority also investigated the feasibility of creating a surface water supply and constructing reverse osmosis plants. These alternatives were rejected due to concerns regarding economics, adverse environmental impacts and the production of sufficient yield. Testing performed at the Lithia site resulted in findings that the aquifer was productive and had a good quality of water. To confirm these findings, further testing was done to the east of the Lithia site at Alderman's Ford Park. This testing resulted in a finding of a high yield of water that met drinking water standards. While traces of a volatile organic compound were revealed, these were determined to have resulted from the laboratory cleaning process. Thus, the Alafia River corridor was determined to be the appropriate location for a regional wellfield because it would not compete with the agricultural irrigation to the north, would avoid the poorer water quality to the south and would produce an adequate yield. The Authority and the County have completed the preliminary design of the proposed wellfield. It is to consist of 17 production wells and a pump station. Wells 1 and 2 are to be used as standby wells and pumpage is to be rotated among wells 3 through 17 so that withdrawals are evenly distributed among those wells. The standby wells are only to be used if there is a failure at another well within the wellfield. Well 1 is already constructed and is located about 1 1/2 miles from Lithia Springs on 80 acres of land purchased by the County for the master pump station. Well 1 is located about 100 feet from the nearest property boundary to the south. The remaining wells would be placed on one-acre well sites to be purchased by the applicant and located somewhere within the 40 acre quarter-quarter sections which the authority submitted to the SWFWMD as proposed well locations. The total additional land area to be acquired for the well sites is 14 acres. Two of the wells will be located on land already owned by the County. Some of the wells are concentrated, with three in one section. The Authority has attempted to locate the wells adjacent to road right-of-ways which could be used for transmission pipelines. The Authority has not yet developed a management plan or a monitoring plan for the proposed wellfield. Each of the wells within the regional wellfield is designed to pump at an average annual withdrawal rate of 3 mgd and a maximum withdrawal rate of 4 mgd. If only one well were turned on in the system and no other wells were running, the well would produce 4 mgd. However, with all of the other wells running, a single well would only produce 3 mgd due to friction loss and the energy required to pump a large mass of water through the pipe under greater pressure. Thus, while the wellfield would be able mechanically to pump 60 mgd, the optimum production capacity will be 45 mgd. On an average day, pumping will be rotated among a small number of wells to produce a total of 24.1 mgd. On a peak day, all 15 wells would be producing approximately 3 mgd each for a total combined withdrawal rate of 44.6 mgd. Based upon a per capita consumption of 189 gpd, it is estimated that the total water supply requirements for the south central service area in the year 1990 to meet average day and maximum day demands is approximately 24 mgd and 44 mgd, respectively. The proposed wellfield is located along the north and south prongs of the Alafia River. That area is characterized by rural and light agricultural land uses, residential areas and recreational sites. Land uses in the area have been dependent upon private, individual water wells, many of which are shallow and draw water from an intermediate aquifer. One proposed well site has 31 property owners within 1/2 mile of the well. One hundred property owners live within 1/2 mile of proposed well 17. These domestic well users will not be served by the proposed system. The Authority has issued revenue bonds to finance the construction of the regional wellfield and transmission lines. The regional wellfield will cost approximately $14,000,000 and the transmission lines will cost approximately S19.000,000. An additional S2,000,000 will be needed to complete construct on and these funds will be raised through the rate structure. In order to determine the proposed wellfield's impacts upon the potentiometric surface, water table and lake stages, the parties in this proceeding utilized information gathered from literature, pump tests, computer modeling and hand-calculated modeling to predict the drawdowns expected during periods of average and maximum pumping. While the actual numerical drawdown 1evels anticipated vary greatly among the expert witnesses presented, it is clear that the wellfield withdrawals, after pumping for 30 days at 24 mgd, will lower the potentiometric surface by more than 5 feet at the boundary of a one-acre well site and that the 5-foot drawdown contour will extend at least 2 1/2 miles radially around the center of the wellfield . The water table level will not be lowered more than three feet at the boundaries of the one-acre tracts, surface waters of lakes and impoundments will not be lowered more than one foot, and the potentiometric surface will not be lowered below sea level. Withdrawals from the wellfield will not induce salt water encroachment. When utilizing computer modeling to predict the impacts from withdrawals, it is essential to understand the site-specific geology and aquifer characteristics of the area. After studying the literature on the area of the wellfield, examining well logs and geophysical logs and conducting a well inventory in a 5-mile area across the wellfield, Gardinier's hydrogeologlsts found the area to be nonisotroptc and calibrated their modeling to account for the changes in geology throughout the area. The area of 'he proposed wellfield was fond to contain a thick clay confining layer which allows less water to permeate it. Inasmuch as less water moves through the layers to recharge the aquifer, the cone depression created by withdrawals from the wellfield extends over a larger and deeper area. Utilizing a value for leakance (defined as the vertical permeability through which water flows from the upper aquifer through a confining layer into the lower aquifer) of 1 x 104. Gardinier's experts predict that the potentiometric surface drawdown at Lithla Springs when the wellfield is pumping 24 mgd for 30 days will be about one foot under normal conditions. During a drought, the drawdown in the Floridan aquifer at Lithia Springs could be as much as 18.9 feet. The effects would, of course, be greater during pumpage rates of 45 mgd. During drought conditions, and possibly also when the wellfield is operating at maximum withdrawal rates, Gardinier may well have difficulty pumping water from Lithia Springs in the amounts for which it is seeking a permit. Various methodologies demonstrate that the potentiometric surface drawdown in the center of the proposed wellfield will be from 20 to 6G feet, depending upon the pumpage amounts and seasonal conditions. Such drawdown levels can interfere with existing wells in the area. Also, a lowering of the potentiometric surface could potentially lead to catastrophic collapse or subsidence in the area of the wellfield. The area is karstic in nature, with solution features such as sin);holes and springs present. Rapid ground collapses can occur in such areas due to a loss in the bearing strength of the unconsolidated material that fills the solution features. Such collapses have been associated with large withdrawals of water from pumping, thus creating extensive drawdowns, followed by a heavy rain. because of the particular geologic and aquifer characteristics of the wellfield area and the potential for interference with existing users, there should be a controlled maximum amount of water development in this area, along with observation wells and extensive monitoring of the various aquifer systems. In order to justify an exception to the District's rule that withdrawals not lower the level of the potentiometric surface more than five feet, the Authority proposes a mitigation program which it utilizes in other wellfields operated by it. This after-the-fact mitigation program consists of receiving complaints, sending a field representative to conduct an on-site investigation to determine the nature and cause of the problem, and sending a letter to the complainant and to SWFWMD documenting the results of the investigation. If the .authority determines that its wellfield operation caused the problem, if it takes mitigative action, such as reimbursing the complainant, hiring a contractor to solve the problem, or refurbishing or replacing the complainant's well or pumping equipment. The Authority also proposes various alternative mitigative actions if the wellfield affects Gardinier's ability to withdraw a sufficient quantity of water from Lithia Springs. These include the construction of new wells at Lithia Springs or along Gardinier's transmission pipeline, lowering the intake system at the springs and supplying Gardinier with water from the wellfield on an emergency basis. These suggested alternatives have not been fully investigated with regard to the effect upon the springs and fail to take into account the economic repercussions to Gardinier should it be unable to supply fresh water for the plant's operation while the Authority is investigating the problem and/or implementing the solution. The SWFWMD has proposed a before-the-fact mitigation plan for landowners living within one-half mile of each well site. This preventative mitigation plan would require the Authority to conduct a detailed water well inventory of all property owners located within one-half mile of the withdrawal point of each production well when the sites are finally selected. The Authority is to review each well's depth, casing size and depth, pump type and depth and the static water level, and then determine whether each well will be adversely affected with regard to its intended use. If so, the Authority is to commence its mitigative actions prior to or during construction of its production well. If an adverse effect is determined during testing of any production well, the Authority is to commence mitigative action prior to withdrawing water for public supply. The mitigative actions for impacted wells are to include well deepening, lowering or replacement of pumping facilities or whatever action is required to maintain an adequate water supply. The five-foot potentiometric surface drawdown contour extends beyond one-half mile during certain scenarios of pumping or seasonal conditions. The .Authority has been operating Well 1 as a test well under a temporary CUP, and has received six complaints from private well owners in the vicinity regarding water levels. No corrective action has been taken with regard to these complaints. With the exception of some phosphate mining cuts and small farm ponds, there are no significant lakes or other impoundments in the area of the proposed wellfield. It is anticipated that such water bodies will be affected by less than one foot by withdrawals from the wellfield. The greatest water table drawdown predicted is 2.8 feet at the center of the wellfield, where there are no open bodies of water. The area is culturally impacted now and is not ecologically sensitive. Vegetative species in the area are able to adapt to a wide range of soil moisture situations, and a less than one-foot reduction in the water table should not adversely or significantly affect vegetation in the area. Operation of the proposed wellfield at the requested rates of withdrawal will have no effect upon Buckhorn Springs or the East Tampa Chemical Plant. Intervenor Hebbard's private well is located between Well l in the proposed wellfield and Lithia Springs. He is concerned that the proposed wellfield will adversely affect land values in the area and the quantity and quality of his water withdrawals. He is also concerned with the potential for terrorist activity in a centralized water supply source and feels that the location of the proposed wellfield will not benefit existing Florida residents. The Lithia-Pinecrest Civic Association is not incorporated and has no membership list or bylaws. Its 47 years, uses the Alafia River for fishing and boating and is that the proposed wellfield will adversely affect his well and pumping facilities without adequate or timely mitigation and that the wellfield will remove the very resource for which the area is zoned: to wit: agicultural. Intervenor A. H. Varnum resides in the area of the proposed wellfield and also operates his business, Central Maintenance and Welding, Inc, in that area. He is concerned that the wellfield will adversely affect his water supply without sufficient mitigation. He is further concerned about the social impact of permitting a wellfield in this area when the water withdrawn will not benefit the persons who reside there. Intervenor I. A. Albritton was in attendance throughout the hearing. He was born in the area and now resides near Wel1 He has noticed odors, ground vibrations and decreasing water levels when Well 1 is pumping. He is concerned with dropping water table levels and the general condition of the land in the area.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: CUP Number 7C01530 be ISSUED to Cardinier for its salt water wells at the East Tampa Chemical Plant for a period of two years an average annual and maximum daily withdrawal rates of 31,968,000 gallons per day: CUP Number 7601532 be ISSUED to Gardinier for spring withdrawals from Buckhorn Springs for a period of six years at average annual and maximum daily withdrawal rates of 1,.40,000 gallons per day, with the condition that total discharge from the spring pool be recorded on a daily basis and reported to the SWFWMD on a monthly basis, and that continuous recording gages be placed to monitor spring flow, spring height and pumpage. CUP Number 7601533 be ISSUED to Gardinier for spring and groundwater withdrawals from Lithia Springs for a period of six years at an average annual withdrawal rate of 5,822,000 gallons per day and a maximum combined withdrawal rate not to exceed 5,904,000 gallons during a single day, with the following conditions: that Gardinier cease utilizing its existing pressure relief system and develop an alternate system for withdrawing sprirlg water only in the amounts actually required, and that total discharge from the spring pool be recorded on a daily basis and reported to the SWFWMD on a monthly basis, and that continuous recording gages be placed to monitor spring flow, spring height and pumpage; and CUP Number 204352 be ISSUED to the West Coast Regional water Supply Authority and Hillsborough County for a period of six years, such permit to consolidate prior permits for approximately 75 existing wells used for public water supply and to construct and operate a regional wellfield containing 17 production wells, with total combined average withdrawal rates of 24 ,100, 000 gallons per day and a total maximum combined withdrawal rate not to exceed 44,600,000 gallons during a single day, with the following conditions, as amplified in the above conclusions of law: that pre-development hydrologic conditions at the wellfield, particularly at each well site, continue to be monitored by the Authority; that a report be submitted to the SWFWMD summarizing the planned schedule for retiring each of the existing wells and the schedule for the phased production of water from each wellfield well; that a written mitigation policy be submitted to the SWFWMD and incorporated as a condition of the permit, said policy to contain adequate measures to eliminate interference without interruption of presently existing legal uses, as suggested by the SWFWMD and including those users who will be affected by a potentiometric surface level drawdown exceeding five feet and Galdinier's withdrawals from Lithia Springs; and that, once production at the wellfield reaches a level of 15,000,000 gallons per day, the Authority will notify the SWFWMD staff and engage in a joint review of the hydrologic monitoring results of pumpage at that .ate and a joint determination of the future pumping scenario. The conditions recommended herein are intended to be inclusive only, and not exclusive of other customary permit terms and conditions nor of those conditions suggested by the SWFWMD in its proposed CUPs Numbers 201530, 201532, 201533 and 204352. Respectfully submitted and entered this 11th day of July, 1986, in Tallahassee, Florida. DIANE D. TREMOR 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 11th day of July, 1986. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Edward M. Chew, Esquire de la Parte, Gilbert & Gramovot, P.A. 705 E. Kennedy Boulevard Tampa, Florida 3360- Roger W. Sims, Esquire Julia Sullivan Waters, Esquire Holland & Knight P. O. Drawer BW Lakeland, Florida 33802 and 600 N. Florida Avenue Tampa, Florida 33602 J. Edward Curren, Esqulre Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 33512-9712 L. M. Blain, Esquire Charles G. Stephen Esquire Anita C. Brannon, Esquire Blain & Cone, P.A. 202 East Madison Street Tampa, Florida 33602 George M. Hebbard, Jr. Route 3, Box 430 Lithla, Florida 33547 Gary W. Kuhl, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 33512-9712
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
