Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
Findings Of Fact The West Coast Regional Water Supply Authority (Authority) is authorized and obligated to acquire water and water rights, store and transport water, and deliver and sell water to its member governments for public use. The Authority exists pursuant to Sections 163.01 and 373.1962, Florida Statutes, and an interlocal agreement executed October 25, 1974, by the "member governments" which include the Cities of St. Petersburg and Tampa, and Pinellas, Pasco and Hillsborough Counties. The City of St. Petersburg is a member government of the Authority. St. Petersburg owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pinellas County (Pinellas) is a member government of the Authority. Under conditions experienced during the rupture of defective pipelines, Pinellas' water utility received water from the facilities at issue in this proceeding. The defective pipeline is still in use and Pinellas may again require water from these wellfields if another rupture occurs. The Southwest Florida Water Management District (District) is charged with the regulation of consumptive water use in west-central Florida, including all areas relevant to this proceeding. The District operates pursuant to the authority of Section 373.069, Florida Statutes. Hillsborough County (Hillsborough) is a member government of the Authority. Hillsborough owns and operates a water utility system which receives water from the facilities at issue in this proceeding. Pasco County is a member government of the Authority but does not receive water from the facilities at issue in this proceeding. The South Pasco wellfield is located within the boundaries of Pasco County. All parties have standing to participate in this proceeding. THE WELLFIELDS The South Pasco wellfield is located in southern Pasco County and is owned and operated by St. Petersburg. The South Pasco wellfield has been operating since 1973. Until 1977, the South Pasco wellfield produced approximately 15 million gallons per day (mgd) of water. The South Pasco wellfield was first permitted by the District in 1978. The permit was renewed in 1982. The current permit allows an annual average daily withdrawal rate of 16.9 mgd and a maximum daily rate of 24 mgd. The permit also requires that withdrawals from this field be balanced with the withdrawal levels of the Section 21 and Cosme- Odessa wellfields. The South Pasco wellfield is currently providing approximately 12 mgd to the Authority. St. Petersburg applied to renew the South Pasco permit on August 18, 1992. The application to renew the South Pasco wellfield was deemed complete by the District on April 28, 1994. No increase in the South Pasco wellfield maximum water withdrawal rate is being sought by the Petitioners. The Section 21 wellfield is located in northwest Hillsborough County. The Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Section 21 field has been operating since 1963. From the initiation of pumping through 1970, withdrawals varied between 10 and 18 mgd. The Section 21 wellfield was initially permitted by the District in 1976. The 1976 permit authorized the withdrawal of an annual average rate of 18 mgd and a maximum daily withdrawal rate of 22 mgd. The Section 21 wellfield currently operates under a permit issued in 1984. The permit effectively authorizes withdrawal of an annual average daily rate of 12 mgd and a maximum daily withdrawal rate of 22 mgd. The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Section 21 wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Section 21 permit on August 18, 1992. The applications to renew the Section 21 permit were deemed complete by the District on April 28, 1994. No increase in the Section 21 wellfield maximum water withdrawal rate is sought by the Petitioners. The Cosme-Odessa (Cosme) wellfield is located in northwest Hillsborough County, and like the Section 21 field is owned by St. Petersburg and jointly operated by the Authority and St. Petersburg. The Cosme wellfield has been operating since the early 1930's. At various times withdrawal rates at the Cosme field have neared 20 mgd. The Cosme wellfield was initially permitted by the District in 1976. The 1976 permit authorized the annual average daily withdrawal of 19 mgd and a maximum daily withdrawal of 22 mgd. The Cosme wellfield currently operates under a permit issued in 1984. The current permit authorizes an annual average daily withdrawal of up to 12 mgd and a maximum daily withdrawal of 22 mgd The face value of the permit originally authorized an additional 1 mgd in the event that the developing Northwest Hillsborough Regional Wellfield could not produce sufficient capacity. The Cosme wellfield currently provides approximately 10 mgd to the Authority. The Authority and St. Petersburg applied to renew the Cosme permit on August 18, 1992. The applications to renew the Cosme permit were deemed complete by the District on April 28, 1994. No increase in the Cosme wellfield maximum water withdrawal rate is sought by the Petitioners. The Northwest Regional Hillsborough wellfield (NWRHWF) is comprised of a vaguely linear series of wells located in northwest Hillsborough County and owned by the Authority. There is no actual Northwest Hillsborough "wellfield." The NWRHWF was initially permitted in 1984 for 8.8 mgd annual daily average and 18.4 maximum daily rate. The NWRHWF began production in the mid-1980's at a rate of approximately 8 mgd. The field currently produces close to 8.8 mgd, the maximum permitted withdrawal. The Authority applied to renew the NWHRWF permit May 19, 1994. Also included within the "wellfield" by the current permit application are two wells owned by Hillsborough County and operated by the Authority. The two wells are located at the Manors at Crystal Lake subdivision. The application for the Manors permit renewal seeks to combine the existing Manors permit with the NWRHWF and to allow the Authority to accept responsibility for the collection of wells. The Manors at Crystal Lake wellfield provide about .2 mgd to a residential subdivision. They are not in the vicinity of the NWRHWF. There are no common withdrawal or distribution facilities shared by the Manors at Crystal Lake wells and the NWHRWF. Hillsborough apparently intended to shed responsibility for the Manors wells and did not intend to be a co-permittee for either the Manors wells or the NWHRWF. Hillsborough specifically notified the District that the Authority would assume responsibility for the permitting of the Manors wells and that Hillsborough was withdrawing from the application process. Based on the Hillsborough representation, the District combined the Manors and the NWHRWF applications for processing and review. The 9 mgd withdrawal rate sought by the Authority in the renewal permit application is the sum of the existing permitted withdrawals at the combined wellfields and does not constitute an increase in existing withdrawal rates. The combined application was deemed complete by the District on June 21, 1994. The permit renewal applications at issue in this proceeding were timely filed in accordance with applicable deadlines. The evidence establishes that it takes from seven to ten years to bring new water supply facilities from the planning stage to operation. Otherwise stated, if the wellfields in these cases were to be closed, it would take up to ten years to bring new wellfields online. Public water supply permits issued by the District are typically valid for a period of ten years. On the subject permit applications, the Petitioners seek to have 20 year permits issued. There is no evidence supporting an extension of the District's standard ten year permit term. PREVIOUS WATER USE PERMITTING Prior to 1972, water withdrawals from the subject wellfields were unregulated. Beginning in 1972, the District established "regulatory levels" for the Cosme, Section 21 and South Pasco wellfields. Regulatory levels are measurements of the water pressure in the Floridan aquifer. As the pressure falls below the regulatory minimum, water withdrawals are restricted. Additional requirements were intended to balance the withdrawals from the three wellfields, an attempt to distribute the effects of large quantity water withdrawals on the water resources of the area. Although in the current permit application, the Petitioners originally sought to have regulatory levels established by the District removed from the renewal permits, the Petitioners have since abandoned the position and now suggest that the existing permits should be renewed with applicable regulatory levels intact. Beginning in 1975, the District initiated a permitting program. The Petitioners sought permits for the South Pasco, Section 21, and Cosme wellfields. Prior to 1989, District rules provided for the award of exemptions to permittees from meeting certain environmental criteria where such exemptions were "consistent with the public interest." The effect of the "public interest" exemptions was to permit withdrawal of water at rates which would otherwise have been prohibited and to allow water withdrawals to lower the Floridan aquifer. In 1975, the District issued the Section 21 and Cosme permits, and granted the "public interest" exemptions to the permittees, allowing water withdrawals which would otherwise not have met environmental permitting requirements. The permits were valid through the end of 1980. The initial South Pasco permit, issued in 1978, anticipated that withdrawals from the wellfield would be reduced when water from the Cypress Creek wellfield became available. The permit was valid through the end of 1980. In 1982, the South Pasco wellfield received a permit valid to September 1992. In 1984, the Section 21 and Cosme wellfields received permits valid to September 1992. The NWHRWF received its initial permit valid to September 1987. In all four permits, the District granted "public interest" exemptions to the permittees from meeting certain environmental criteria. The effect of the exemptions was to allow the water withdrawals at rates which would otherwise have been prohibited and which lowered the level of the Floridan aquifer. The District asserts that the Authority was advised during the early 1980's permitting process that alternative water resources needed to be developed to provide for future demand and allow for rotational capacity in the subject wellfields. The District asserts that little progress has been made in addressing these issues. To the extent the Authority was directed in prior and somewhat vague permit conditions to consider alternative sources, the evidence establishes that the Authority has complied with the minimal directives provided by the District. NORTHERN TAMPA BAY AREA HYDROGEOLOGY In the mid 1980's, the District declared the area of Northern Tampa Bay , including the subject wellfields, to be an "area of special concern" regarding the condition of local water resources. In 1987, the District undertook a water resource assessment project to examine local water resources. In 1989, based on preliminary information from the project (the "WRAP"), the District identified the subject wellfield area as the "Northern Tampa Bay Water Use Caution Area" in recognition of environmental stress identified by the District. After rule changes in 1989, the District eliminated the rule provision which provided for the granting of exemptions to environmental requirements. The amended rules required a permittee to assume responsibility for both on-site and off-site impacts related to the water withdrawal. The District also began to consider the "cumulative" impacts of withdrawals. At about the same time as the 1989 rule changes became effective, the District adopted the "Basis of Review" which provides for procedures and additional information related to water use permit review. In 1992, the WRAP study area was expanded and became identified as the "Northern Tampa Bay Water Resource Assessment Project" (NTBWRAP). The NTBWRAP is the District's most recent attempt at determining the condition of the water resources in the area of the subject wellfields. The geology of the wellfields and of most of the surrounding area is essentially a three-layer structure. The top layer is the surficial aquifer. The bottom layer is the Floridan aquifer. Separating the two is a "confining" layer. An "aquifer" is a geological formation in which water is stored and from which water may be obtained via the drilling of wells. The movement of water through geological materials is measured as "hydraulic conductivity." The surficial aquifer is primarily made of sandy, fine- grained material. The level of water found in the surficial aquifer is what is commonly described as the "water table." Generally, the level of water found in wetlands and lakes is a rough approximation of the surficial aquifer water table. The Floridan aquifer is a porous limestone formation with visible and sometimes sizable cavities and channels. The water of the Floridan aquifer permeates the limestone and flows within the limestone cavities and channels. The cavities and channels in the limestone are referred to as "karst" features, as are sinkholes, which result from the collapse of cavities in the limestone. The subject wellfields withdraw water directly from the Floridan aquifer. The confining layer between the aquifers is primarily made of clay. The impermeability and thickness of the clay deters the movement of water between the surficial and the Florida aquifers. The potential for movement of water between the aquifers is known as "leakage." The thickness of the confining layer in the area of the subject wellfields varies considerably. In some areas, there may be an essentially intact confinement and little or no leakage. In other areas, the confining layer is thin or nonexistent, and substantial leakage occurs. For example, the formations known as "sinkholes" are generally areas of collapsed Floridan aquifer limestone formations where the confining layer can be completely breached, at least until the sinkhole fills with other material and leakage is reduced. The level to which water will rise in a well drilled to the Floridan aquifer is known as the "potentiometric level." The water level identified through multiple Floridan aquifer wells is described as the "potentiometric surface." The potentiometric surface essentially measures the water pressure of the Floridan aquifer and can vary depending on factors including water withdrawals from the aquifer. The difference between the potentiometric level of the Floridan aquifer and the water table level of the surficial aquifer is referred to as "head difference." When the potentiometric surface of the Floridan aquifer is higher than the water table of the surficial aquifer, water can flow through a breached confining layer to the surface and appear as what is commonly called an "artesian well" or "spring." Where the potentiometric surface of the Floridan aquifer is lower than the water table of the surficial aquifer, surficial water can move through a leaky confining layer to the Floridan aquifer in a process known as "recharge." Water within the Floridan aquifer can move horizontally from an area of higher potentiometric surface towards an area of low potentiometric surface, but such movement is very slow and can take many, many years. Almost all of the Floridan aquifer recharge occurs through precipitation in areas where karst features are present and where the level of the surficial water table exceeds the potentiometric surface of the Floridan aquifer, thus permitting the precipitation to defuse into the Floridan system. The evidence establishes that the area of the wellfields at issue in this proceeding is generally characterized as one of a leaky confinement layer with substantial karst features. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of ground penetrating radar tests, measurements at nested well sites, and historical observation. Additional data related to aquifer withdrawal levels and nearby well measurements further support this finding. Ground penetrating radar tests are useful in measuring the existence of karst features below ground and under water bodies. To the extent that such tests have been performed in the area of the South Pasco, Cosme-Odessa, and Section 21 wellfields, the results indicate that karst features are prevalent and indicative of a leaky confining layer between the aquifers. "Nested" wells are paired wells, one into the surficial aquifer and the other into the Floridan, which are located within close proximity to each other. Concurrent measurements of water level fluctuations can indicate a connection between the aquifers. Such measurements within the vicinity of these wellfields indicate the existence of a poor confinement between the aquifers. WELLFIELD IMPACTS ON POTENTIOMETRIC SURFACE The wells at issue in this proceeding withdraw water directly from the Floridan aquifer. The water withdrawals result in a lowering of the potentiometric surface of the Floridan aquifer. The reduction of potentiometric surface by water withdrawal is referred to as "drawdown." The greatest drawdown occurs at the site of the well and becomes reduced with distance, resulting in a "cone-shaped" impact centered around the withdrawal area. The impact is referred to as a "cone of depression" in the water level. Drawdown impact can be influenced by the location of wells, the quantity and speed of withdrawal, precipitation, and the movement of water through the aquifer ("transmissivity") and between the aquifers ("leakage.") The "cone of depression" extends outward from the withdrawal point until the effects of the withdrawal are balanced by surficial recharge and inflow from the Floridan. Drawdown impacts are estimated by the use of groundwater flow models. The models generate contour lines which approximate the extent of drawdown related to specific water withdrawals. A drawdown contour "map" is generated by application of withdrawal projections to the model. The resulting map indicates the anticipated impact of water withdrawals. As mathematical estimates, drawdown models may not accurately measure impacts of water withdrawals on aquifers, however, they provide a useful tool to direct further observation and can be corroborated by appropriate actual measurements. The primary cause of the Floridan aquifer drawdown in the vicinity of the subject wellfields is the withdrawal of water by the Petitioners in accordance with water use permits issued by the District. This finding is based on the credited testimony of the Respondents' expert witnesses, on the results of aquifer performance tests and on review of monitoring well hydrographs. Additional support for this finding is provided by the groundwater flow model data analysis offered by the District. According to the District groundflow modeling, the drawdown at the South Pasco wellfield is from nine to twelve feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from three to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Section 21 wellfield is from six to ten feet at the wellfield boundary, from four to seven feet at a distance of one mile from the boundary, and from two to five feet at a distance of two miles from the boundary. According to the District groundflow modeling, the drawdown at the Cosme-Odessa wellfield is from four to five feet at the wellfield boundary, from two to three feet at a distance of about a mile or so from the boundary, and from one to two feet at a distance of two and a half miles from the boundary. According to the District groundflow modeling, the drawdown at the NWHRWF is from three to four feet at the linear "wellfield" approximate boundary, from two to three feet at a distance of one mile from the boundary, and from one to two feet at a distance of two miles from the boundary. Floridan aquifer recharge in the vicinity of the subject wellfields occurs by surficial water flow through the porous confining layer. WELLFIELD IMPACTS ON SURFICIAL AQUIFER, LAKES AND WETLANDS The drawdown of the Floridan aquifer results in a lowering of the surficial water table as water leaks through the marginal confining layer and into the Floridan. The lowering of the surficial water table results in a lowering of area lakes and wetlands. The process by which water from the surficial aquifer leaks into the Floridan aquifer is known as "induced recharge." Induced recharge occurs where the head difference between the aquifers is reduced by Floridan aquifer withdrawals to the point at which surficial water will leak down through the confining layer and into the Floridan aquifer system. While other factors including reduced rainfall and increased evapotranspiration can result in lowered lake and wetland water levels, the evidence in this case establishes that the primary cause of lowered lake and wetlands water levels in the vicinity of the subject wellfields is the withdrawal of water at the wellfields resulting in induced recharge from the surficial aquifer to the Floridan aquifer. The evidence further establishes that the withdrawal of Floridan aquifer water in the area of the subject wellfields has resulted in dramatically increased fluctuations in the water levels of area lakes and wetlands. Normal "day-to-day" fluctuations in local lake water levels (called "amplitude") have been greatly increased by the groundwater withdrawals. Historical data, to the extent it exists, indicates that the current lake water in the area of the wellfields fluctuates within wider ranges, and at lower levels, than reflected by prepumping data. This finding is based upon the credited testimony of the Respondents' expert witnesses and on a review of historical hydrological data admitted into the record at hearing. Although the area has experienced an abnormal period of reduced precipitation, the impact of the wellfield withdrawals has exacerbated the water level fluctuations which could otherwise be attributed to a lack of rainfall. Surficial water table reductions related to induced recharge occur over an extended period of time. The quantity of water generally contained in the surficial aquifer tends to obscure the immediate impact of Floridan aquifer withdrawal, and accordingly, aquifer performance tests are generally poor measurements of the impact of Floridan aquifer withdrawals on the surficial aquifer, but review of historical data clearly indicates the impact. The gradual reduction in the surficial aquifer water table has resulted in a corresponding reduction of water levels in lakes and wetlands. Although each lake and wetland has different hydrogeologic features, and some are more impacted by groundwater withdrawal than are others, the evidence clearly establishes that the majority of lakes and wetlands in the area of the subject wellfields are hydrologically connected to the Floridan aquifer via the connection of the surficial aquifer to the Floridan, and that the lowering of the potentiometric surface of the Floridan aquifer has resulted in lowering of the surficial water table and of lake and wetland water levels. About nine percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with lakes. Analysis of data related to lake levels at Lake Rogers on the Cosme wellfield and Starvation Lake on the Section 21 wellfield show substantial average lake level declines clearly related to the groundwater withdrawal occurring in the wellfields. Lake Rogers has declined from an average level in 1930 of 45 feet (prior to the start of withdrawals) to a level of 30 feet in 1995. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. In fact, despite a cumulative rainfall deficit during the early 1960s, the water levels around the Cosme wellfield increased during a period of time during which water withdrawal quantities were being reduced. Starvation Lake has declined from an early 1960s average of 53 feet to 46 feet in about 1995. During a period when pumping from Section 21 was at greater quantities than now, Starvation Lake declined to about 42 feet. The evidence establishes that the lake level decline is the result of continued groundwater withdrawal. During the period from late 1991 to mid 1992, the level of Starvation Lake declined by about 37 inches. An analysis of the area precipitation/evapotranspiration indicates that almost 14.4 inches of the decline are attributable to induced recharge from the lake to the aquifer. As to the South Pasco wellfield, the depth to the water table was measured in the mid 70's (after the beginning of pumping from the wellfield) at approximately five feet at the wellfield center, and three feet near the wellfield boundaries. However, one mile north of the wellfield, the depth to the water table was approximately one-tenth of a foot. Camp Lake, located immediately east of the South Pasco wellfield, has shown a decline from a 1970 level of 63 feet to a 1995 level of 57 feet, a decline which corresponds to pumping activity and the related decline in the Floridan aquifer. Water is the driving force in wetlands ecosystems. The duration of water inundation in a wetland is known as the "hydroperiod." A decline in water table levels results in a reduction of wetland hydroperiod. Water storage, wildlife viability and nutrient cycling are water dependent wetland functions which can be negatively affected by a reduction in hydroperiod. Other impacts of reduced wetland hydroperiods include loss of hydric soils, wetland-dependent species declines, replacement of wetland species by upland species including "exotics," tree loss, and an increased incidence of fire. Wetland water inundation or saturation results in the formation of hydric soils by the accumulation of "peaty" organic material at a rate of about one millimeter annually. The lack of oxygen in an inundated or saturated state allows for the accumulation of material at a very slow rate of decomposition. The peaty deposits in the wetlands near the subject wellfields indicate that these wetlands have existed for at least a thousand years. Normal drought conditions will result in some loss of hydric soil. The reduction of the wetland hydroperiod related to groundwater withdrawals near the impacted wetlands provides an increased opportunity for decomposition of the hydric soils. Such decomposition, called "burning" or "oxidation" results in drying and destruction of the peat. As the peat soil dries, its volume is reduced; as the volume declines, the soil subsides. Substantial tree loss is a visible indication that serious soil subsidence has occurred as the soil which formerly supported the tree with nutrients and physical support declines. Wetland plants are those which thrive in the normal wetland environment. Variations in wetland hydroperiod can result in substantial alteration to the wetland community of species. As the wetland hydroperiod is reduced, the growth of "invasion" species such as Melaleuca and Brazilian pepper increased, another indicator of a stressed wetland system. Cypress wetlands are utilized by a number of endangered or threatened species, including the wood stork and the indigo snake, and by various wading birds. As the wetland hydroperiod is reduced, the ability of wetland dependent species to utilize the wetland is similarly reduced. Eventually, the loss of wetlands results in lost breeding grounds, nesting areas and roosts, and eventually the complete loss of the habitat for wetland-dependent species. An increased incidence of serious and destructive fire is another result of decreased hydroperiod and hydric soil alteration. Under normal conditions, fire in cypress wetlands rarely occurs. There may be small fires every few years and a "serious" fire every few hundred years. In normal conditions, fire will burn through vegetation, but inundated or saturated peat soils do not suffer severe fire damage. In an area of reduced hydroperiod, fires can burn through dry soils and declining vegetation, resulting in extensive damage and additional soil loss. About 21 percent of the land area within 100 square miles of the South Pasco, Cosme and Section 21 wellfields is covered with wetlands. Of the 100 square mile area, wetlands make up 35 percent of the land around the Section 21 field, about 15 percent of the land around the Cosme field and 55 percent of the land around the South Pasco field. About 1,500 acres of wetlands are within a one mile radius of the Section 21 wellfield. About 2,000 acres of wetlands are within a one mile radius of the Cosme wellfield. About 1,600 acres of wetlands are within a one mile radius of the South Pasco wellfield. In the area of the subject wellfields, wetlands have been and continued to be impacted by reduced water levels. The conditions existing in the wellfield-area wetlands include soil oxidation and subsidence, increased invasion by "exotic" species, increased incidence of fire, tree loss, and loss of habitat for wetland dependent species. The primary cause of reduced water levels in the wetlands is the lowering of the surficial aquifer caused by water withdrawals at the subject wellfields. This finding is based on the credited testimony of the District's expert witnesses including a review of historical data related to wetland impacts and the wellfield withdrawals, and comparison of wetlands in the vicinity of the wellfields to "control" wetlands away from the wellfield impact. The control wetlands exhibit longer hydroperiods and display fewer signs of ecological stress than do wetlands closer to the wellfields. The control wetlands display a greater abundance of wetland-dependent species than do the wellfield-area wetlands. Notwithstanding the adverse impacts of the permitted water withdrawal, the hydrogeologic systems in the area of the wellfields have reached "dynamic equilibrium." A major water withdrawal from the Floridan aquifer results, after a period of several years, in a shifting of hydrological systems to accommodate the lowered levels. It can take as long as ten years for the changes and restabilization process to occur. Once the aquifer systems have stabilized, the systems have reached a "dynamic equilibrium." The hydrologic systems in the area of the subject wellfields have reached dynamic equilibrium. The evidence establishes that the major adverse impacts which occurred in the vicinity of the subject wellfields began shortly after the inception of water withdrawals from the wellfields. Although clearly adverse environmental impacts have occurred and are the result of water withdrawal, the water systems in the area of the wellfields have "reset" and are now essentially stable at the lowered levels. The Petitioners suggest that the adverse environmental impacts visible in the ecosystems on and near the wellfields can be attributed to natural ecosystem succession. The assertion is not supported by credible evidence. The greater weight of the evidence establishes that the major adverse environmental impacts are related to the withdrawal by the permittees of substantial quantities of water from the Floridan aquifer. The Petitioners assert that recent levels of low rainfall are the primary cause for the lowered lake levels and reduced wetland hydroperiods. The evidence fails to support the assertion. There is insufficient evidence to establish that recent low rainfall levels are indicative of a long term situation. The greater weight of the evidence indicates that recent low rainfall events are likely part of a cyclical precipitate system which historically experiences periods of increased and decreased rainfall. The major adverse environmental impacts to the lakes and wetlands are the result of water withdrawal. The low rainfall levels have exacerbated the situation, resulting in a lack of surficial water inflow into lakes and wetlands sufficient to replace that water which is continuously leaking from the surficial aquifer into the Floridan aquifer, as well as that which is lost from the surface via evapotranspiration. Although environmental monitoring efforts by the Petitioner are suggested to indicate that the deleterious effects of the reduced water levels are being remedied by recent increased rainfall levels, the evidence is insufficient to establish that the impacts of reduced hydroperiods related to groundwater withdrawals will be remedied by a return to "normal" rainfall levels. Recent increased rainfall has contributed to an increase in water levels. The typical changes which would be expected to accompany increased precipitation, such as signs of water in formerly dry littoral zones, are visible in a some areas. However, overall lake levels remain lowered, exposed lake beds are visible, and upland vegetation continues to grow on what was formerly lake bottom. The former shorelines are visible and clearly delineated by vegetation lines. The evidence fails to establish that the recent rainfall increase will correct the adverse impacts caused by the withdrawal of water from the subject wellfields. While the greater Tampa Bay area has recently seen cyclical low levels of precipitation, the predominant cause of the lowered surficial water table in the vicinity of the subject wellfields is the groundwater withdrawals from the wellfields. A return to "normal" rainfall levels will not address the systemic alterations which have occurred in the wellfield-area wetlands. If it is assumed that a lack of rainfall is the cause of the decline in the surficial water table, the conditions of the wellfields should be generally similar regardless of whether the wetlands are on/near the wellfields, or whether they are located at some distance from the fields. The evidence establishes that the wetlands near the area of the wellfields display signs of a gradual and continuing decline. Wetlands outside the wellfield impact do not show the same level of decline. It is reasonable to assume that periods of increased rainfall would result in increased water levels in area lakes, however, a review of data indicates that the lakes near the wetlands do not respond to rainfall in a normal manner. Despite two years of average to above average rainfall, the lakes at the Section 21 and Cosme wellfields continued to be substantially below normal. A comparison of potentiometric surfaces at monitoring wells on and off the wellfield sites further establishes that the lowering of the water table is not a precipitation-induced event. Monitoring wells on the wellfield sites have shown substantially increased reductions in potentiometric surface as compared to monitoring wells located in areas not impacted by the withdrawals. The Petitioners assert that area drainage projects have caused a reduction of water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to establish that there have been regional or local surficial flow changes sufficient to result in the reduction of water in nearby lakes and wetlands or in the decline in the surficial aquifer. Although drainage projects near some wellfields could potentially impact surface water movement, the evidence that such drainage projects are responsible for the lowering of the surficial water table in the vicinity of the wellfields is not persuasive. The Petitioners assert that land development in the area of the wellfields has resulted in reduced water flow into the wellfield lakes and wetlands and that such flow reduction is the cause of the visible impacts to such water features. The evidence fails to support the assertion. The type of analysis required to establish the impacts of drainage on surficial water systems has not been performed. Current surface water management system permitting rules in effect since 1984 are designed to reduce the impacts of surface drainage on surrounding waterflow systems. Systems constructed in compliance with permitting rules retain water on the development site and can provide additional groundwater recharge. The evidence is insufficient to establish that significant development near the Section 21 wellfield is the cause of the lowered water levels on or near the wellfield There is relatively little urban development near the Cosme and South Pasco wellfields which could potentially impact water flow. The evidence fails to establish that the existing development hydrologically impacts the wellfield. The evidence fails to establish any relevant impacts caused by highway construction on the area hydrology. The Petitioners also assert that, rather than the South Pasco wellfield pumping, it is the land management practices by property owners to the east of the South Pasco field which are responsible for degraded conditions. Although land management practices, specifically burning, may have damaged wetlands, dry conditions related to pumping-related surficial aquifer declines likely resulted in more severe burn damage than would have otherwise occurred. "BASELINE" The District has adopted by rule permitting criteria which are considered in the review of an application for water use permit. The permitting criteria are further addressed in the District "Basis of Review." In part, the review of a water use permit application seeks to determine the anticipated impact of the proposed water withdrawal on wetlands, water resources and other natural systems by utilization of the permitting criteria and the Basis of Review (BOR). Such analysis requires establishment of a "baseline" against which anticipated impacts may be predicted. The baseline provides a point against which future impacts to a resource by a permitted water withdrawal can be measured. A baseline also provides a standard by which the success of mitigation efforts can be measured. The permitting history for the subject wellfields, including review of staff analyses, indicates that the adverse environmental impacts related to the water withdrawals were known to the District during earlier permit application considerations. The evidence establishes that in prior permit decisions, the District determined that the adverse environmental impacts were anticipated, and exempted the permittees from certain environmental standards which would likely have reduced the adverse impacts. The District Governing Board's decision to exempt permittees from meeting certain criteria related to adverse environmental impacts where such exemption was in the "public interest" was a discretionary act by the Board. The evidence fails to establish that the adverse environmental impacts caused by the actual withdrawal of water at current quantities from the subject wellfields have exceeded the adverse impacts which were previously deemed acceptable by the District. Although the District's rules have been changed to eliminate the granting of exemptions from permitting criteria, the evidence fails to establish that the District was ever required to exempt an applicant from meeting the criteria. The four wellfields at issue in this proceeding have operated in compliance with the permits issued by the District. None of the wellfields have been cited for violations of permit conditions. There is no evidence that any Notice of Violation has been issued regarding any operational aspect of these wellfields. There is no evidence that the District has initiated any permit condition enforcement action related to these wellfields. The District has been authorized under the previous permits to require mitigation of adverse environmental impacts related to the permitted withdrawals. There is no credible evidence that the District has taken formal action to require mitigation of adverse environmental impacts related to the subject groundwater withdrawals. The environmental conditions caused by withdrawal of water at the subject wellfields are those which were previously deemed acceptable and consistent with the public interest by the District. For purposes of this Recommended Order, baseline conditions are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications. EXISTING PERMITTED ADVERSE IMPACTS The evidence establishes that there have been adverse environmental impacts in the area of the South Pasco wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at South Pasco include a reduction in wetland hydroperiod, significant biological change, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, increased damage by abnormal fire, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to South Pasco water withdrawal include adverse impacts to Camp Lake, Mary Lou Lake, Lake Ruth, and Long Sun Lake. The water level at Camp Lake has shown substantial impact since the initiation of pumping. Other lakes have been impacted to the extent that aesthetic and recreational values are impaired. Animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Section 21 wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Section 21 include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Section 21 water withdrawal extend at least one mile from the wellfield and include adverse impacts to Starvation Lake, Lake Jackson, Lake Simmons, Lake Oakley and Lake Crum. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. The evidence establishes that there have been adverse environmental impacts in the area of the Cosme-Odessa wellfield caused by the withdrawal of groundwater. The evidence includes the credited testimony of expert witnesses, review of historic photographs, comparison of land use and cover classifications during the period of water withdrawals, and review of monitoring site data. The current area impacts related to the water withdrawal at Cosme-Odessa include a reduction in wetland hydroperiod, alteration of normal wet-season water levels, extensive oxidation and subsidence of soils, substantial cypress tree decline, significant declines in wetland species composition, and impairment and loss of habitat for wetland dependent species, including threatened and endangered creatures. There has been an alteration in community zonation, community types and plant species composition. Lake impacts related to Cosme-Odessa water withdrawal extend at least one mile from the wellfield and include adverse impacts to Horse Lake, Church Lake, Lake Rogers, Lake Raleigh, Lake Amelia and Calm Lake. Shorelines are exposed, upland and exotic species have invaded formerly wet areas, animal populations have been altered, and normal ranges of water level fluctuation have been impacted. As compared to the other three wellfields at issue in this proceeding, the impacts related to the NWHRWF are minimal. Given the "linear" nature of the NWHRWF, wellfield-related adverse environmental are not localized but spread over a larger area than is the case with the other production wellfields. Accordingly the signs of environmental degradation which are visible at the other three wellfields are not visible in the vicinity of the NWHRWF. Two wetlands in the vicinity of the NWHRWF currently exhibit hydrologic impacts and upland species invasion, one near the "NW-1" well and another near the intersection of Gunn Highway and Turner Road. The evidence fails to establish that the adverse impacts at these two wetlands are related to the production of water at the NWHRWF. PERMITTING CRITERIA AND ACTUAL CURRENT WITHDRAWALS The evidence establishes that for the quantity of water currently being withdrawn from the wellfields, the applicants meet the relevant permitting criteria. To obtain the water use permits sought in this proceeding, the Petitioners must establish that the proposed use of water is a reasonable-beneficial use, that the proposed use will not interfere with any presently existing legal use of water, and that the proposed use is consistent with the public interest. As to the quantity of water currently being withdrawn from the wellfields, the evidence establishes that the proposed use of water is a reasonable-beneficial use, the proposed use will not interfere with any presently existing legal use of water, and the proposed use is consistent with the public interest. The evidence establishes that there will no new adverse environmental impacts caused by the continuation of pumping from the subject wellfields at quantities currently being withdrawn. The continuation of water pumping at current actual levels of withdrawal will continue the ecological decline already in progress, but will not result in new kinds of adverse environmental impacts. Over the long term, areas of reduced hydroperiod will continue to experience invasion by upland species and soil oxidation. The biological characteristics of the impacted areas have been altered. Wetland obligate vegetation will continue to decline. Populations of lake and wetland dependent creatures will be reduced as the water levels remain lowered by the impact of the pumping. Fires will continue to pose an increased threat to the already damaged wetlands. Despite the existing adverse impacts, there is no credible evidence that impacted areas would return to prepumping conditions even if pumping were halted from the subject wellfields. The actual withdrawal of water at levels not greater than those currently being pumped is a reasonable and beneficial use of the resource. The provision of potable water to the customers of the water utility systems which receive water from the authority is a reasonable and beneficial use of the resource. There is no evidence that the existing potable water requirements of the end users may be met by any other currently available water resource. The actual withdrawal of water at levels not greater than those currently being pumped will not interfere with other existing legal uses. The evidence establishes that where existing water uses predate the District's water use permitting program, such existing uses are not required to demonstrate non-interference with other existing legal uses unless the applicant proposes to withdraw additional quantities or create an impact greater than was previously permitted. In this case, the Petitioners seek to have the existing permits renewed at the quantities set forth in the existing permits. The proposed use is consistent with the public interest. The reliable provision of high quality water to the citizens of Florida is necessary to meet public health and safety requirements and is clearly consistent with the public interest. The Authority supplies water to a total population estimated at 1.8 million residents. Although the wellfields at issue in this proceeding supply only about 35 percent of the permitted water capacity distributed by the Authority, the evidence establishes that it is unlikely the Authority could supply the quantities currently required without utilization of these wellfields. Though the Authority operates an interconnected water supply system, the existing configuration of the supply lines does not allow for unrestricted provision of water from any wellfield to all users. The Section 21 wellfield supplies water to the residents of northwest Hillsborough County. Were the Section 21 wellfields to be unavailable, the Authority could not immediately route water to the northwest Hillsborough users from other fields. Likewise, the other three wellfields supply water to St. Petersburg, and the Authority would be unable to meet water requirements were the wellfields closed or pumping was substantially restricted. The District asserts that the lack of proper permits does not necessarily lead to the conclusion that these wellfields would be closed, and that water could be legally pumped via a series of emergency orders. There is no evidence that the District has made any legally binding commitment to allow for water withdrawals outside the appropriate permitting process. There is no evidence that the denial of permit renewal applications is an appropriate method for remedying adverse environmental impacts which are the result of previous permitting decisions and which were identified prior to issuance of the existing permits. Although the Petitioners estimate the cost of developing a water resource to replace the permitted capacity lost if these applications are denied to be about $180 million dollars, the cost estimate has insufficient supporting documentation to indicate that it is accurate. There is no evidence that the permittees have initiated any credible effort to replace the total quantity of water being withdrawn from the subject wellfields with new water sources of similar quality. The evidence establishes that at current actual quantities of water withdrawal, the Petitioners comply with the criteria requirements for issuance of the permits. Reasonable assurances have been provided that the withdrawal of water at the quantities currently being pumped is necessary to fulfill a certain reasonable demand for water. The actual quantity being withdrawn at the subject wellfields is necessary to meet current reasonable demand. The evidence further establishes that the actual quantity being withdrawn at the subject wellfields is capable of continuing to meet potable water demand during the permit renewal period. As for projected future demand, St. Petersburg estimates that it will need 43 mgd of water by 2007. The maximum annual average daily withdrawal from these wellfields is as much as 40.9 mgd. St. Petersburg receives an additional 6.2 mgd from the Authority as part of a water agreement "entitlement." Absent any additional available resources, the total maximum available quantity of 47.1 mgd would be sufficient to meet the water requirements of St. Petersburg. However, the evidence as to future demand in St. Petersburg fails to establish that St. Petersburg will require actual total withdrawals at the maximum levels currently permitted. Between 1983 and 1994, St. Petersburg's potable water use averaged about 39 mgd. From 1991 to 1994, the potable water use was about 37 mgd, indicating that potable water use is declining. At the hearing, St. Petersburg produced data which indicated anticipated total demand could be as low as 40.8 mgd, based on current usage patterns. The evidence establishes that St. Petersburg's water requirements can be met without increasing the actual quantities of water currently being withdrawn from the subject wellfields. Expanded and more appropriate utilization of the reclaimed water which is already available, and additional conservation measures and use restrictions identified in the pending Water Resource Development Plan, will provide sufficient water without increased withdrawals from the subject wellfields. Given the reduction in water use though increased utilization of reclaimed water and additional conservation measures, the evidence establishes that the projected water needs can be met without increasing the quantities currently being withdrawn from the subject wellfields. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact the water resources, including both surface and ground waters, beyond those previously permitted by the District. The continued withdrawal of water from the subject wellfields at the quantities currently being pumped will cause no changes which adversely impact water resources, beyond those previously known to and permitted by the District. There is no credible evidence that any new adverse environmental impacts will result from withdrawal at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters, beyond those previously permitted. Adverse environmental impacts have resulted from the permitted withdrawal of groundwater as identified elsewhere in this order. The District has had the ability to require mitigation through conditions attached to prior permits. The District has the authority to continue to attach mitigation conditions to the permits issuing from this proceeding. There is no evidence that adverse environmental impacts caused by groundwater withdrawal can not be mitigated, however, it is difficult to determine, absent any direction from the District, the type of mitigation which would meet the District's approval. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. To the extent that such ranges are established, the evidence establishes that water withdrawals at current actual levels will not result in deviation from established ranges. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize the lowest quality water that the Applicant has the ability to use. St. Petersburg initiated a water reuse program in 1977, and is committed to expansion of the reuse system. The reuse program replaces potable water with reclaimed water in irrigation and some industrial applications. The St. Petersburg reuse program is nationally recognized. St. Petersburg currently has excess capacity in its reclaimed water system and has begun to increase the rate of expansion by reducing connection fees and taking other steps to allow easier neighborhood access to the reuse system. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact offsite land uses existing at the time of the application, beyond those previously impacted by permitted withdrawals. There will be no additional adverse impact to offsite land uses existing at the time of the application as a result of the continued withdrawal of water at current actual quantities. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not adversely impact any existing legal withdrawal beyond those previously impacted by permitted withdrawals. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will utilize local resources to the greatest extent practicable. The evidence establishes that the potable water being withdrawn from the subject wellfields constitutes utilization of local resources to the greatest extent practicable. There is no credible evidence that a sufficient potable water supply is located more proximately to the St. Petersburg water users. The District asserts that the alleged misuse of excess reclaimed water demonstrates a failure to utilize local resources to the greatest extent practicable. The evidence does not support the assertion. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will incorporate water conservation measures. The District has set a per capita water use goal for the Northern Tampa Bay region of 140 gallons per day (gpd) by the beginning of 1997 and 130 gpd by the start of 2001. St. Petersburg's current water use rate is 122 gpd, substantially below the District's level. The evidence establishes that substantial efforts are being made by the Petitioners to reduce water use where such is economically feasible. St. Petersburg enforces lawn watering restrictions. New construction standards and a program aimed at replacement of existing residential bath fixtures encourage use of water-saving fixtures. St. Petersburg utilizes a water use rate structure which encourages conservation. Specific water conservation goals have been established. The District asserts that the Petitioners have not sufficiently demonstrated a commitment to conserve water to the satisfaction of the District. The fact that current water use in St. Petersburg is less than in other local areas, and in fact is below the District's mandated rate for 2001, suggests otherwise. While it is almost always possible to suggest that "more should be done," the evidence establishes that the Petitioners are making a good faith effort to conserve water resources. It is reasonable to expect that the Petitioners will continue to explore methods of reducing potable water use. Reasonable assurances have been provided that the continued withdrawal of water from the subject wellfields at the quantities currently being pumped will not cause water to go to waste. The District criticizes St. Petersburg's reluctance to meter the use of reclaimed water and suggests that the lack of metering results in excess use of the available reclaimed water, which could otherwise (assuming expansion of the system) be available to other users. St. Petersburg states that metering would discourage use and that one of the goals of the reuse program is to dispose of wastewater. Unused reclaimed water is disposed of by deep-well injection. St. Petersburg asserts that the reuse program has the capacity to serve about 11,750 customers. At the end of 1994, there were about 7,600 customers. The evidence establishes that there is excessive use of reclaimed water by some consumers. Moderating excessive reclaimed water use would permit the system capacity to serve a total of about 17,000 customers. Increasing reclaimed water service to 17,000 customers could reduce the need for potable water by five mgd. It is logical to assume that as the potable water supply becomes less available and more costly, reclaimed water will become more valuable and more important in meeting the water needs of St. Petersburg It is likely that limitations on water withdrawals from the subject wellfields will serve to increase the value and utilization of reclaimed water. The District asserts that St. Petersburg's reuse system encourages overuse of reclaimed water and discourages citizens from connecting to the reuse system. Expansion of the reuse system requires installation of distribution lines. While there is no credible evidence that St. Petersburg's expansion program has been intentionally delayed, high connection charges and threshold for neighborhood participation have delayed system expansion. The evidence establishes that there is additional demand for reclaimed water by users in St. Petersburg. Reuse distribution lines are installed in neighborhoods where water users express interest in obtaining the reclaimed water. During a recent "sale", citizens were encouraged to connect to the reuse system through subsidized connections. St. Petersburg reduced from 50 percent to 30 percent, the number of homeowners who must agree to connect to the system prior to distribution line installation. Reduced-interest and extended payment loans were made available to homeowners to pay for the cost of connection. More than 2,000 customers signed up during the "sale." It will take about a year and a half for the city to meet the expansion demand established through the sale. The District asserts that metering of the reuse system will reduce waste of the reclaimed water. Although St. Petersburg suggests that metering will discourage use of the reclaimed water system, St. Petersburg is currently installing water meters to test the impact created by metered use. At this time, the evidence fails to establish that metering will reduce waste, though it is reasonable to assume that metering, and a conservation oriented rate structure, will reduce excess use. PERMITTING CRITERIA AND MAXIMUM QUANTITIES The existing permits allow for water withdrawals at quantities higher than those currently being withdrawn. The combined actual average daily withdrawals at the four wellfields total about 40 mgd. The maximum permitted capacity at the four subject wellfields is about 49 mgd. The evidence is insufficient to establish that at the 49 mpg maximum withdrawal levels set forth in the current permits, the Petitioners comply with the criteria requirements for issuance of the permits. The Petitioners assert that adverse environmental impacts will not occur even if pumping is at full permitted capacity. The evidence fails to support the assertion. Testimony that pumping from the subject wellfields could be increased by as much as 25-30 percent without an increase in the severity and extent of adverse environmental impacts is without credible foundation and is rejected. The issue of "rotational capacity" is offered by the Petitioners as rationale for issuance of permits which permit pumping beyond the quantities currently being withdrawn. Interconnected wellfields offer the ability to rotate withdrawals between the connections in order to allow time for repairs to a well, and to allow some facilities to "rest" and recover from environmental stress. In order to provide this ability, pumping from one of the interconnected wellfields is increased to reduce pumping from the stressed wellfield. The "rotational capacity" of the system is the quantity of water above that which is currently being withdrawn and which allows for pumping to be increased at the less stressed wellfield. The evidence fails to establish that "rotational capacity" can not be achieved without permitting withdrawals from the wellfields to increase above those quantities currently being withdrawn. The evidence fails to establish that increased water withdrawals, up to the maximum quantities set forth in the existing permits, will not interfere with other existing legal uses. The evidence fails to establish that pumping from the subject wellfields at maximum permitted quantities will not result in additional adverse environmental impacts. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause quantity or quality changes which adversely impact water resources, including both surface and ground waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources waters. The evidence fails to establish that the withdrawal of water from the subject wellfields in excess of the quantities currently being pumped will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8. MITIGATION The evidence fails to establish that the Petitioners have proposed any appropriate mitigation which would address the existing environmental impacts of water pumping from the subject wellfields. Further, no acceptable mitigation plans have been proposed to address the adverse impacts which would accompany increased withdrawals from the four wellfields. The Authority has proposed an Environmental Management Plan (EMP) which provides a method of monitoring environmental conditions to determine whether mitigation of impacts would remedy adverse impacts. Although the EMP could provide reliable data in addition to that already available, the EMP, even if implemented, does not constitute mitigation of adverse impacts. One form of possible mitigation suggested by the Petitioners is the concept of "augmenting" lakes and wetlands by the addition of water taken from other lakes or wells to lakes with lowered water levels, or by the addition of excess reclaimed water to wetlands. The augmentation proposal is specifically addressed in St. Petersburg's "4-D's" report. The evidence fails to establish that the 4-D's report presents a reasonable mitigation proposal. Augmentation presents a number of biological concerns related to the addition of one type of water to another. Such issues include alteration of water balance, introduction of different non-native microscopic organisms into the receiving water, nutrient alteration, and coliform bacteria concerns. The evidence fails to establish that lake and wetland augmentation is an adequate or appropriate means of mitigating adverse impacts related to groundwater withdrawal. The evidence that the District has permitted lake augmentation in other situations fails to establish that such mitigation is an adequate method of addressing adverse impacts related to groundwater withdrawal. The evidence establishes that the Authority has implemented a "Good Neighbor Policy" under which the Authority repairs or replaces local private wells which experience problems possibly related to the water withdrawals at the NWHRWF. There is evidence that the Authority makes such repairs without determining the actual cause of the problem in an attempt to address local citizen complaints. The Authority has implemented the policy voluntarily. In two cases, the District received complaints from citizens unsatisfied by the Authority's response. The Authority provided additional assistance and eventually remedied the problems. Although the "Good Neighbor Policy" provides an adequate program to address the concerns of private individuals in the area of the NWHRWF, the evidence fails to establish that the general policy is adequate mitigation of the adverse environmental impacts caused by the wellfield water withdrawal. A monitoring program being performed on behalf of the Petitioners could provide an acceptable framework for monitoring and mitigating future adverse environmental impacts. Beginning in 1983, an environmental monitoring program was established by Water and Air Research, Inc., (WAR) for the NWHRWF. The water use permit for the NWHRWF requires implementation of a monitoring program. The NWHRWF monitoring program includes 67 monitoring stations and additional transect areas, and covers an area of approximately 120 square miles including areas near the Section 21 and Cosme-Odessa wellfields. The data collected from the monitoring program was published in annual reports which have been submitted by West Coast to the District. Beginning in 1991, WAR established an environmental monitoring program at the South Pasco wellfield on behalf of the Authority and St. Petersburg. The South Pasco wellfield permit does not require implementation of an environmental monitoring program. The WAR/South Pasco monitoring program includes nine monitoring stations. The data collected from the WAR/South Pasco monitoring program was published in three annual reports. In addition to the WAR monitoring program, CH2M Hill was retained in anticipation of these permit renewal applications to assess the condition of the South Pasco, Section 21, and Cosme-Odessa wellfields. CH2M Hill designed a three phase assessment program which includes a comparative review of land uses around the wellfields, a comparative review of ecological function both on- site and off-site of the fields with available historical data, and a detailed quantitative survey of current ecological conditions at the wellfields and at identified control sites. Although the WAR monitoring programs or the CH2M Hill assessment project are not without flaws, they provide the ability to quantify any future adverse environmental impacts caused by the continued withdrawal of water from the subject wellfields against a more detailed "baseline" measurement than that which has previously been available. The WAR/CH2M Hill programs also appear to provide the ability to gather more site- specific data than any program currently being utilized by the District. The WAR/CH2M Hill projects are not accepted for the purposes of determining historic impacts which have occurred since the inception of water withdrawals from the subject wellfields. The analysis of land use changes in the areas of the four wellfields, suggesting that the adverse environmental conditions were primarily related to factors other than pumping, was not persuasive. Evidence as to whether the selection of monitoring sites for the WAR/CH2M Hill projects appropriately represent the current state of the lakes and wetlands in the area of the wellfields was unpersuasive. Further, the WAR/CH2M Hill analysis of the current data provided by the witnesses involved in the project was not credible as to conclusions that the adverse impacts were being reversed by the recent cyclical return to more rainfall. It is not unusual to expect that where wetlands still exist, increased rainfall would show increased abundance of wetland dependent species. Increased rainfall results in temporarily increased lake levels and visible upland vegetation die-off will occur when the water level reaches the vegetation. The data is insufficient at this time to establish that there is any general "recovery" occurring in the ecosystems impacted by the withdrawal of water from the Floridan aquifer. The Petitioners assert that the WAR/CH2M Hill projects are more intensive than the monitoring projects utilized by the District. The evidence establishes only that over an extended period of time, the WAR/CH2M Hill projects are capable of providing quantities of detailed data related to the condition of the wellfields. The evidence fails to establish that the data currently generated by the WAR/CH2M Hill projects provides a basis for reliable long term analysis. THE NWHRWF DEFAULT PERMIT ISSUE As stated previously, the Authority asserts entitlement to an unrestricted default permit for the NWHRWF. The evidence establishes that the Authority is entitled to a default permit, but does not support issuance of an unrestricted water use permit. During the permit renewal process, the NWHRWF application was combined with the Manors at Crystal Lake wellfield permit which had been held by Hillsborough County. Hillsborough County turned operational responsibility over the wellfield and over the renewal permitting process to the Authority. Notice of the District's completeness determination was sent not to Hillsborough but to the Authority, which was identified on the permit as the applicant. Prior to the District's first decision deadline, the District sought by letter to Hillsborough and copy to the Authority, an extension of the deadline to December 31, 1994. By separate letters, both Hillsborough and the Authority consented to the extension. The District was apparently unable to act by the deadline and sought a second extension to March 1, 1995, but the District's request was sent only to a representative of Hillsborough County. No copy of the request was provided to the Authority. At the time the District sought the second extension from Hillsborough County, the District had been notified that the Authority had assumed responsibility for the NWHRWF/Crystal Lake renewal application. The District claims that the request to Hillsborough County, rather than to the Authority was proper because Hillsborough had been the permittee on the expiring permit. However, the District had notified only the Authority that the combined applications had been deemed complete. Apparently unaware that Hillsborough had withdrawn from the permit renewal application process, the Hillsborough representative consented to the second extension, but did so without consultation with the Authority. The Authority did not consent to the second extension. At the time the District sought the second extension, Hillsborough County had no responsibility for or authority regarding the combined NWHRWF/Crystal Lake renewal application. The District issued it notice of proposed action on the NWHRWF on February 7, 1995. The Authority asserts that it is entitled to an award of a default permit for the NWHRWF based upon the failure of the District to grant or deny the permit by the December 31, 1994 deadline extension to which the Authority had consented. The evidence fails to establish that the Authority is entitled to receive an unconditioned permit based on the District's failure to meet the December 31 deadline. The evidence does establish, based upon the failure of the District to meet the December 31 deadline or obtain an extension from the Authority as the applicant for the permit, that the Authority should receive a ten year permit for operation of the NWHRWF subject to the conditions set forth herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order: Granting water use permits for the subject wellfields with the following conditions: The permits should be valid for a period of ten years from the date of issuance. The maximum permitted quantities for each of the four permits should be reduced to not more than the average annual daily quantity currently being withdrawn at each wellfield. In order to provide rotational capacity, the permits should be structured to provide, upon approval of the District, for water withdrawal in excess of the permitted quantities at any of the four wellfields, so long as the increase in withdrawal from one wellfield is balanced by decreased withdrawal at another wellfield. The renewal permits should provide for no increased water withdrawals beyond the actual quantities currently being pumped from these wellfields. Environmental monitoring should continued and be expanded to include areas not currently being monitored. The monitoring program should be jointly undertaken and funded by the permittees and the District. The District shall determine the number and placement of monitoring stations and the frequency with which data shall be collected and reported. The Authority's "good neighbor" policy at the NWHRWF should be made a condition to the NWHRWF permit. The City of St. Petersburg's water reuse program should be expanded to provide additional service where such expansion is feasible. St. Petersburg shall implement continuing measures to encourage enrollment of new customers, including permanent reductions in connection fees and neighborhood participation thresholds, as has been done during the recent campaign to increase connections. St. Petersburg shall also implement measures to reduce the excessive use of reclaimed water by current customers. The District shall establish time-specific deadlines by which St. Petersburg's compliance with this condition can be measured. The permits should include all standard conditions which are generally applicable to the subject water use permits. RECOMMENDED this 29th day of May, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1997. COPIES FURNISHED: E. D. “Sonny” Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Donald D. Conn, Esquire West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 John T. Allen, Esquire Post Office Box 14332 St. Petersburg, Florida 33733-4332 Kim Streeter Assistant City Attorney Post Office Box 2842 St. Petersburg, Florida 33731 Daniel P. Fernandez, Esquire Laura A. Olson, Esquire 3820 Northdale Boulevard, Suite 312B Tampa, Florida 33624 Douglas Manson, Esquire 100 South Ashley Drive, Suite 1190 Tampa, Florida 33601 Edward P. de la Parte, Jr., Esquire Michael A. Skelton, Esquire Post Office Box 2350 Tampa, Florida 33601-2775 Richard Tschantz, Esquire James A. Robinson, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. Gary Early, Esquire 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301 John W. Wilcox, Esquire Derek Spillman, Esquire 100 South Ashley Drive, Suite 1500 Post Office Box 3273 Tampa, Florida 33601 Frederick T. Reeves, Esquire 5709 Tidalwave Drive New Port Richey, Florida 34652 H. Ray Allen Assistant County Attorney Post Office Box 1110 Tampa, Florida 33601 Karen E. Maller, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 David Forziano Assistant County Attorney 601 East Kennedy, Boulevard, 27th Floor Post Office Box 1110 Tampa, Florida 33601 Stanley J. Niego, Esquire Prosperity Bank Building 100 Southpark Boulevard, Suite 405 St. Augustine, Florida 32086
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. 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 quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
The Issue The issue is whether Respondent's water use permit should be revoked for nonuse of the permit for a period of two years or more.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The District is a state agency charged with the responsibility of issuing water use permits under Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40B- 2 for the geographic area under its statutory jurisdiction. Alachua County is within that geographic jurisdiction. Respondent is a Florida corporation with offices at 700 Northwest Cheeota Avenue, High Springs, in northern Alachua County. It owns approximately 700 acres in High Springs (west of Interstate Highway 75) on which it operates a church retreat and summer camping and recreational facility known as Camp Kulaqua. The property surrounds, and is contiguous to, Hornsby Spring, a first-order magnitude spring (having a flow rate of 100 CFS or greater) which, under normal conditions, discharges into the nearby Santa Fe River. Hornsby Spring is one of 296 documented springs within the District's jurisdiction. After receiving an overture from a representative of a private water bottling company, on September 28, 1999, Respondent filed an application for a General Water Use Permit in Township 7 South, Range 17 East, Section 26, in High Springs. In its application, Respondent represented that it desired a daily allocation of 2,000,000 gallons; that it intended to install two 12-inch wells, each having a capacity of 1,400 gallons per minute, just east of, and upgradient from, Hornsby Spring; and that all water withdrawals would be used in conjunction with a privately-owned commercial spring water bottling facility to be located on its property. The application also represented that the facility would employ 36 persons and operate 168 hours per week. The application was reviewed by a former District hydrogeologist, William H. Kirk. During the review process, and in response to Mr. Kirk's request for more information, Respondent provided a comparison of the requested allocation with the overall flow of Hornsby Spring. This was because Mr. Kirk was concerned that the requested allocation was "a bit high," and he wanted to ensure that the issuance of the permit would not cause harm to, or adversely affect, the water resources. Under a professional guideline that Mr. Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact." Notwithstanding Mr. Kirk's use of this guideline, the District points out that there is no District rule or policy sanctioning the ten percent rule, and at hearing it denied that this standard is used by the District in assessing water use applications. Further, the Permit itself does not refer to a relationship between spring flow and the size of the allocation. Even so, this analysis was considered by Mr. Kirk in determining whether Respondent had given reasonable assurance that the spring would not be impacted. In its response to the request for additional information, Respondent reduced its requested allocation to 750,000 gallons per day and indicated that if a bottling plant were to be constructed on its property, approximately 700,000 gallons of the total allocation would be consumed in "bulk transfer and bottling," with the remainder for camp use. More specifically, Respondent indicated that it would allocate 490,000 gallons per day for bulk transport, 210,000 gallons per day for spring bottling water, and 50,000 gallons per day for incidental uses at its property. By reducing the allocation from 2,000,000 gallons per day to 750,000 gallons per day, Respondent's requested average daily allocation represented only 0.4 percent of the average daily spring flow as measured over the last 28 years. The reduced allocation satisfied Mr. Kirk's concern that Respondent demonstrate a reasonable demand and a reasonable need for that allocation, and he recommended approval of the application.2 On February 25, 2000, the District approved the application and issued Water Use Permit No. 2-99-00130 (Permit).3 The Permit authorizes an average daily withdrawal of 0.7500 million gallons per day (750,000 gallons per day) or a maximum daily withdrawal and use of 0.7500 million gallons per day with an annual allocation not to exceed 273.750 million gallons (273,750,000 gallons) per calendar year in conjunction with the operation of a privately-owned water bottling plant. The Permit expires on February 25, 2020. After the Permit was issued, under the regulatory process in place, Respondent was required first to obtain a permit for a temporary test well which would be used to collect information concerning the site of the proposed activity, and to then file an application for permits authorizing the construction and operation of the two 12-inch production wells. The Permit contains a number of conditions, two of which require a brief comment. First, Condition No. 2 provides that "[t]his permit is classified as unconfined [F]loridan aquifer for privately owned bottled water plant." This means that all water withdrawals must be made from the unconfined Floridan aquifer, as opposed to the spring head of Hornsby Spring. (Respondent's proposed siting of its two production wells 660 yards east of the spring is consistent with this provision.) Second, Condition No. 4 provides that "[t]he permittee shall submit daily pumpage records on a monthly basis to the [District]." Pumpage reports are filed by permittees so that the District can determine whether the permit is actually being used, and if so, to ensure that the amount of water being withdrawn under the permit does not exceed the authorized allocation. As it turned out, pumpage reports were never filed by Respondent. (However, the record shows that the District has never strictly enforced this requirement for any permittee.) In late 2002, the District staff undertook a review of the nine water bottling permit holders within its jurisdiction, including Respondent. That category of permit holders was selected for review because of the small number of permits and the limited resources of the District staff. (In all, the District has probably issued several thousand permits to other types of users.) On February 4, 2003, the District served its Complaint under the authority of Sections 120.60 and 373.243, Florida Statutes, and Florida Administrative Code Rule 40B-2.341. As grounds for revoking the permit, the District alleged that there was "non-use of the water supply allowed by the permit for a period of two (2) years or more." Although Respondent contends that it should have been given an opportunity to correct the nonuse allegation before the Complaint was issued, nothing in the Administrative Procedure Act or District rules requires that this be done. Until the issuance of the Complaint against Respondent in early 2003, and similar Complaints against eight other permit holders at the same time, the District had never invoked this statutory provision.4 There is no evidence to support Respondent's contention that the Complaints were issued for "purely political reasons." On March 4, 2003, Respondent requested a formal hearing challenging the District's proposed action. In the parties' Pre-Hearing Stipulation, the issues have been broadly described as follows: whether Section 373.243(4), Florida Statutes, is to be strictly or liberally construed; whether Respondent's nonuse is based upon extreme hardship for reasons beyond its control; and whether the District is equitably estopped from permit revocation. (According to the District, even if the Permit is revoked, such revocation is without prejudice to Respondent reapplying for, and receiving, another permit so long as it meets all applicable requirements.) Equitable Estoppel Respondent first contends that the District is estopped from revoking its Permit on the theory that, under the circumstances here, the doctrine of equitable estoppel applies. For that doctrine to apply, however, Respondent must show that the District made a representation as to a material fact that is contrary to a later asserted position; that Respondent relied upon that representation; and that the District then changed its position in a manner that was detrimental to Respondent. See, e.g., Salz v. Dep't of Admin., Div. of Retirement, 432 So. 2d 1376, 1378 (Fla. 3d DCA 1983). The District issued Respondent's Permit on the condition that Respondent operate in conformity with all pertinent statutes and regulations. This finding is consistent with language on the face of the Permit, which states that the Permit "may be permanently or temporarily revoked, in whole or in part, for the violation of the conditions of the permit or for the violation of any provision of the Water Resources Act and regulations thereunder." Respondent relied on the District's representation that it could use the Permit so long as it complied with all statutes and regulations. In reliance on that representation, in addition to staff time, after its Permit was issued, Respondent expended "somewhere around" $70,000.00 to $74,000.00 for conducting water quality testing; sending cave divers underground to ascertain the correct location of the portion of the aquifer on which to place its production wells; drilling a 6-inch test well in August 2000; obtaining the City of High Springs' approval in March 2000 for industrial zoning on a 10-acre tract of land on which to site a "water plant"; and engaging the services of a professional who assisted Respondent in "seeking out businesses and getting the right qualifications of the spring water to make sure that it was a marketable water." The District has never asserted anything different from its original position: that if Petitioner complied with all statutes and rules, it could continue to lawfully make water withdrawals under its Permit. The issuance of the Complaint did not represent a change in the District's position. Because a change in position in a manner that was detrimental to Respondent did not occur, the necessary elements to invoke the doctrine of equitable estoppel are not present. Was the Permit Used? A preliminary review by District staff indicated that Respondent had never filed the daily pumpage reports on a monthly basis and had never requested permits authorizing the construction of the two 12-inch production wells. These preliminary observations were confirmed at final hearing, along with the fact that Respondent has never entered into an agreement with a water bottling company (although draft agreements were once prepared); that Respondent has never constructed a water bottling facility; and that no operations were ever conducted under the Permit. Therefore, the evidence supports a finding that Respondent did not use its Permit for the two-year period after it was issued, as alleged in the Complaint. Respondent's contention that the evidence fails to support this finding belies the evidence of record. In an effort to show that it actually used the Permit, Respondent points out that in August 2000 it applied for, and received a permit to construct, an unmetered 6-inch test well in association with its General Water Use Permit. (Respondent sometimes erroneously refers to the test well as a test production well. This is incorrect as the well is a test well, and not a production well.) After the test well was installed, at some point Respondent says it began withdrawing approximately 50,000 gallons per day of water from that well for incidental uses associated with the operation of Camp Kulaqua.5 These withdrawals were made on the assumption that the test well permit fell under the broad umbrella of the General Water Use Permit. (Respondent also has a permitted 6- inch diameter well and an unregulated 4-inch well on its premises, both of which are used for water supply needs at Camp Kulaqua.) It is true, as Respondent asserts, that its Permit authorized incidental withdrawals of up to 50,000 gallons per day for unspecified uses at Camp Kulaqua. However, these withdrawals are authorized under the General Water Use Permit and not the test well permit. The two permits are separate and distinct. On the one hand, a test well is intended to be temporary in nature and used only for the purpose of test well development and collecting information regarding the height of the aquifer and water quality at the site of the proposed activity. Conversely, withdrawals for any other purpose, even incidental, must be made from the production wells, which are only authorized by the General Water Use Permit. Before a test well can be used for normal consumptive purposes, the permit holder must seek a modification of the permit to include it as a part of its general water use permit. Here, no such modification was sought by Respondent, and no authorization was given by the District. Therefore, Respondent's incidental water uses associated with its test well cannot be counted as "uses" for the purpose of complying with the use requirement in Section 373.243(4), Florida Statutes. In light of the District's credible assertion to the contrary, Respondent's contention that it is common practice to lawfully withdraw water from a test well for incidental consumptive purposes has been rejected. (It is noted, however, that the District has not charged Respondent with violating the terms of its test well permit.) Extreme Hardship Under Section 373.243, Florida Statutes (which was enacted in 1972), the District is authorized to revoke a water use permit "for nonuse of the water supply allowed by the permit for a period of 2 years." However, if the user "can prove that his or her nonuse was due to extreme hardship caused by factors beyond the user's control," revocation of the permit is not warranted. The phrase "extreme hardship caused by factors beyond the user's control" is not defined by statute or rule. In the context of this case, however, the District considers an extreme hardship to occur under two scenarios. First, if the aquifer level has dropped so low due to drought conditions that a permit holder cannot access the water through its well, its nonuse is excusable. Alternatively, if an emergency order has been issued by the District directing permit holders (including Respondent) to stop pumping due to certain conditions, an extreme hardship has occurred. (Presumably, a severe water shortage would precipitate such an order.) In this case, the District issued a water shortage advisory, but not an emergency order, due to a "severe drought," indicating that users could still pump water, but were encouraged to voluntarily reduce their usage. This advisory remained in effect from the summer of 1998 until the spring of 2003, when a severe drought ended. However, no emergency order was ever issued by the District. Respondent contends that its nonuse was due to an extreme hardship caused by factors beyond its control. More specifically, it argues that a severe drought occurred in Alachua County during the years 1998-2003, and that under these conditions, federal regulations prevented it from withdrawing water for bottling purposes, which was the primary purpose for securing a permit. Further, even if it had withdrawn water during these drought conditions, such withdrawals could have adversely impacted Hornsby Spring and constituted a violation of a District requirement that water resources not be adversely impacted. Because an investment of several hundred thousand dollars was required to drill and install the two production wells, Respondent contends it was not financially prudent to make that type of investment and begin operations until normal spring conditions returned. These contentions are discussed in greater detail below. Around September 7, 1999, a representative of a water bottling company first approached Respondent about the possibility of the two jointly operating a water bottling plant and/or transporting water in bulk from Respondent's property. Prompted by this interest, less than three weeks later Respondent filed its application for a water use permit (although at that time it did not mention on the application that off-site bulk transfers would occur), and a permit was eventually issued in February 2000. Later, and through a professional firm it employed, Respondent had discussions with representatives of several bottling companies, including Great Springs Waters of America (Great Springs) and Perrier Group of America. Apparently, these more serious discussions with a potential suitor did not take place until either late 2000 or the spring of 2001. Periodic measurements taken by District staff at Hornsby Spring reflected natural drought conditions from April 2000 to April 2003. As noted earlier, this was the product of a "severe drought" which took place between the summer of 1998 and the spring of 2003; the drought was one of a magnitude that occurs only once in every 50 to 100 years. During the years 2000 through 2002, the spring had zero flow or was barely flowing much of the time.6 Had Respondent pumped water during 20 out of the 24 months after the Permit was issued, it could have potentially violated the requirement that it not harm Hornsby Spring. This fact is acknowleged by a District witness who agreed that if the "spring is not flowing, . . . [pumping] would have an [adverse] impact." Even as late as October 2003, the spring had tannic discoloration caused by the lengthy drought conditions. The parties agree, however, that there is no water shortage in the District at the present time. To illustrate the difficulty that it experienced in obtaining a joint venture partner for water bottling purposes, Respondent established that in the spring of 2001, a Great Springs representative visited the site when the spring was "barely flowing." For obvious reasons, Respondent could not "bring a party there who would want to enter into a business [agreement]" under those conditions. These same conditions remained in effect during most of the two year period. The District points out, however, that even though the spring was low or barely flowing, so long as the aquifer itself was not too low, Respondent could still withdraw water from the aquifer, since Condition 2 of the Permit authorizes withdrawals from the aquifer, and not the spring. The reason for this apparent anomaly is that when a spring ceases to flow, the aquifer has simply dropped below the level of the spring vent; even under these circumstances, however, there may still be a substantial quantity of water in the aquifer available for pumping. Assuming that it could still lawfully pump water when the spring was dry or barely flowing without causing adverse impacts to the spring, Respondent was still subject to federal regulations which govern the bottling of spring water. See Title 21, Part 165, C.F.R. For spring water to be marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi) requires that the water "be collected only at the spring or through a bore hole tapping the underground formation feeding the spring." This means that the bore hole had to be physically connected with the cave system feeding Hornsby Spring or produce water of the same quality as that discharging from the spring. The regulation goes on to provide that "[i]f spring water is collected with the use of an external force [such as by a pump], water must continue to flow naturally to the surface of the earth through the spring's natural orifice." While this regulation obviously does not prohibit Respondent from pumping water, since that authority lies within the District's exclusive jurisdiction, it does provide that in order to use spring water for bottling purposes, the water must continue to flow naturally from the aquifer to the spring. If it does not, the water cannot be used for this purpose. Because Hornsby Spring had zero flow for parts of 2001 and 2002, and severely reduced flows during most of the other time during the two-year period ending February 2002, Respondent was effectively prevented by the foregoing regulation from using the water for bottling purposes. Therefore, Respondent's nonuse was due to extreme hardship caused by factors beyond its control -- a severe drought lasting throughout the two-year period after the Permit was issued, and federal regulations which prevented it from using water for the purpose for which the Permit was issued. Thus, the nonuse is excusable.
The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, 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 26th day of July, 2012.
Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 30th day of November, 1983.
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.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated January 8, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health, including the county health departments such as the St. Lucie County Health Department ("County Health Department"), are responsible for supervising and controlling limited use public water systems. Section 381.0062(3), Florida Statutes (1997). Mr. Gorman is the owner of three duplexes located at 120 and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort Pierce, Florida. The duplexes were built in 1982 and 1983 and each contains two units which are available for rent. Water is piped into each duplex from a well located on the property. The wells providing water to 120 and 122 Laidback Way and to 140 and 142 Laidback Way were inspected by the Department of Health and Rehabilitative Services in May 1994 and found to be satisfactory pending results of water tests. Two-day bacteriological analyses were conducted on May 2 and 3, 1994, on the wells serving these two properties, and the results were satisfactory. 3/ The 1994 inspection report for the well serving the property at 120 and 122 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 30-gallon "p tank"; a 20-gallon water softener filter; and a 30-gallon brine tank. The 1994 inspection report for the well serving the property at 140 and 142 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 20-gallon "p. tank"; a 25-gallon water softener filter; and a 40-gallon brine tank. In a letter dated August 21, 1998, the County Health Department notified Mr. Gorman that he needed to submit the application enclosed with the letter and a $140.00 fee to bring the "permit" to current status for the property located at 140 and 142 Laidback Way. The letter was inartfully composed and conveyed incomplete information regarding the nature of the permit. The letter did, however, contain reference to "Chapter" 381.0062, Florida Statutes, and Chapter 64E-8, Florida Administrative Code, and it also provided notification that Chapter 64E-8 required quarterly sampling of limited use public water systems for bacteria and a lead and nitrate test every three years. The County Health Department sent Mr. Gorman an identical notice, dated August 21, 1998, regarding the property located at 160 and 162 Laidback Way. The County Health Department sent Mr. Gorman a somewhat different letter, dated August 31, 1998, regarding the "Limited Use Public Water Systems" for the property located at 120 and 122 Laidback Way. The letter notified Mr. Gorman that his permit to operate the "referenced water system has expired as of September 30, 1998." The letter reiterated the information contained in the August 21 letter and requested in addition that Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the system, drawn to scale, that accurately identifies the location of the source of water in relation to property boundaries and contaminant sources, i.e., well must be 75 feet from septic system, etc." and an "[e]quipment list: pump, tank, softener, automatic chlorinate, etc., manufacturer, model #, and capacity." Finally, Mr. Gorman was notified of the permitting and testing fees and told that the "[a]pplication with required site and equipment information must be submitted with necessary fees within 30 days receipt of this notification." Mr. Gorman responded with a letter dated October 16, 1998, in which he posed several questions to the County Health Department: Do you understand that these are duplexes? Are all rental properties including single family subject to these regulations? Can you give me a valid reason why rental units of two units or more should be subject to quarterly bacterial testing (I believe the statute only authorizes it annually) and not all other residential properties, public facilities or otherwise that might use well water? Mr. Gorman requested a response to his questions but did not provide the information, applications, and permit fees requested in the letters dated August 21 and August 31. In a letter dated December 14, 1998, sent certified mail with return receipt requested and referenced as a Notice of Violation, the County Health Department notified Mr. Gorman that he was operating limited use community public water systems without a permit at 120 and 122, 140 and 142, and 160 and 162 Laidback Way and that he had not provided the following required information: Signed, dated application form. An operation permit fee of $75.00 for the initial permit. A site plan of the property that accurately identifies the location of the well in relation to property, boundaries and contaminant sources such as septic tank systems. Capacity/size, model and brand information on system components. Well completion report if available or year well was installed if known. Required chemical analysis results (lead and nitrate). Initial satisfactory two-day source (well) water and system water bacteriological tests results. Mr. Gorman was told to contact Bruce McLeod within five days of receipt of the notice. Although Mr. Gorman received the notice on December 16, 1998, he did not respond. The County Health Department had not, as of the final hearing, received any reports of illness attributable to the water from the wells at the subject properties, and it does not have any reason to believe that the wells are contaminated. Mr. Gorman had not, as of the final hearing, submitted the applications, permit fees, or information requested by the County Health Department, and he had no operating permits for the wells providing water to the subject properties. The evidence presented in this case is sufficient to establish that the wells providing water to the three duplexes owned and rented by Mr. Gorman each contains two rental units and are limited use community public water systems. Mr. Gorman must have operating permits for the wells providing water to these properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: Finding that Robert J. Gorman is guilty of three violations of Section 381.0062, Florida Statutes (1997), because he failed to obtain operating permits for the limited use community public water systems he maintains at 120 and 122, 140 and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and Imposing an administrative fine in the amount of $1500.00, or $500.00 for each of the three violations. DONE AND ENTERED this 25th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of June, 1999.
