The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to section 373.175, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. In the event a water shortage, is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions, as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 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 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
Findings Of Fact On December 9, 1982, Petitioner filed with Respondent a dredge and fill permit application to remove gates and wing-walls from a double-lock canal system presently installed at the Palmetto Point Subdivision in Lee County, Florida, adjacent to the Caloosahatchee River. On January 6, 1983, Respondent sent a "completeness summary" to Petitioner, along with a letter advising Petitioner that its permit application was incomplete, and requesting additional information. Petitioner responded to the January 6, 1983, completeness summary by submitting additional information to Respondent on or about February 23, 1983. On March 21, 1983, Respondent sent a second completeness summary requesting further additional information from Petitioner. By letter dated May 18, 1983, Petitioner's attorney advised Respondent that submission of additional requested hydrographic information and water quality data was not justified. The letter further advised that Petitioner intended to rely on the information already submitted, and requested, pursuant to Section 403.0876, Florida Statutes, that Respondent begin processing the permit application. The letter further indicated that petitioner was submitting under separate cover a request that Respondent apply the "moderating provisions" of Rule 17-4.244, Florida Administrative Code, to the application. The aforementioned rule is entitled "Mixing Zones: Surface Waters." Also on May 18, 1983, Petitioner's counsel sent another letter to Respondent requesting the aforementioned "Mixing Zone." The letter requested the "maximum mixing zone" allowed under the applicable Provisions of Rule 17- 4.244, Florida Administrative Code. Petitioner had not requested a mixing zone be applied to the permit application prior to the request contained in its May 18, 1983, letter. By letter dated June 17, 1983 Respondent, in response to Petitioner's May 18, 1983, letters, advised that: The additional information [which] was received on May 19, 1983, was reviewed; however, the items listed on the attached sheet remain incomplete. Evaluation of your proposed project will continue to be delayed until we receive all requested information. Respondent's June 17, 1983, letter included a completeness summary, which asked for additional information, including the following requests concerning mixing zones: Your request for a mixing zone is applicable pursuant to F.A.C. Rule 17-4.244(6). Please provide a map indicating the outermost radius of the mixing zone (no more than 150 meters) and the period of time required. The completeness summary acknowledged Petitioner's refusal to supply additional information concerning hydrographic data and water quality information, and indicated that Respondent would evaluate the project accordingly. By letter dated August 29, 1983, Respondent advised Petitioner that it had been 73 days since notification of the incompleteness of the permit application with regard to the mixing zone request. This letter requested Petitioner to advise Respondent if it wished to withdraw the application, request additional time, or discuss questions regarding the application. The Petitioner did not respond to this communication. On September 9, 1983, Petitioner's attorney forwarded a letter to Respondent requesting a default permit pursuant to Sections 120.60(2) and 403.0876, Florida Statutes. Until this letter, other than a prior oral communication on September 2, 1983, notifying Respondent that the default request was forthcoming, Petitioner had not contacted Respondent concerning the permit application since its May 18, 1983, letters. On October 13, 1983, Respondent advised Petitioner by letter that the mixing zone request constituted a revision of the application and that the information received to evaluate the mixing zone request was incomplete. Petitioner was also advised that since the additional information requested had not been received, the application remained incomplete and Petitioner was not entitled to a default permit. Whether or not a mixing zone is applied to a permit application is significant because it determines where state water quality standards must be met, either adjacent to the proposed project, or up to 150 meters away from the project location. Under Rule 17-4.244(6), Florida Administrative Code, the 150 meter radius is measured from the point of generation of turbidity or pollution. Since the two locks to be removed were 80 feet apart, it was unclear whether Petitioner intended the point of generation for measuring the radius of the mixing zone to be the northern lock, the southern lock, or some other point. It is equally unclear whether Petitioner intended the mixing zone to extend south into the canal as well as north into the Caloosahatchee River. Petitioner never contacted Respondent to clarify the dimensions of the mixing zone being sought, even after Respondent requested a map indicating the outermost limits of the mixing zone in the June 17, 1983, completeness summary.
The Issue At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues. Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards. Background The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses. In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/ Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2 Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life. As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants: To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of +1.4 Ft. NGVD which will be planted with red mangroves. DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction. The Monroe County permits On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit. As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park. While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek. The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least 15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life. While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment. To mitigate the loss of habitat types, the Monroe County permit provides: The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area. Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal. To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition: The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met. The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek. John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy. Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4 Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides: If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met. The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park. Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations Lack of plat approval As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal. Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides: Sec. 9.5-1. Purpose. It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . . Sec. 9.5-2. Applicability. General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a development permit under the provisions of this chapter and other applicable laws and regulations. Sec. 9.5-81. Plat approval and recording required. * * * No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which the construction is proposed. * * * (e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division. Sec. 9.5-94. Amendment of a recorded final plat. An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat. Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/ The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide: Sec. 9.5-82. General Standards for Plat Approval. No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval. Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section. Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning. Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to the development review committee, which shall prepare a recommendation and report for the commission. Public Hearing and Action by the Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee. Effect of Approval of Preliminary Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat. Sec. 9.5-84. Final Plat Approval. Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section. Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44, development review coordinator shall submit the application and accompanying documents to the development review committee. Review and action by Development Review Committee. The development review committee shall review all applications for final plat approval. b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity. Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47. Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C. Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section 9.5-47. Sec. 9.5-90.Maintenance of Private Improvements. If any plat of subdivision contains streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed. As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/ Open space requirements and environmental design criteria Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction. In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or portion thereof, adopted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. (a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added) Sec. 9-804 (MCLDR) Open space requirements. No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type. Land Type on Existing Open Space Conditions Map Ratio Open Waters 1.00 Mangrove and Freshwater 1.00 Wetlands Salt Marsh and Buttonwood .80 Associations .85 High Hammock (High Quality) .80 High Hammock (Moderate Quality) .60 High Hammock (Low Quality) . 4 Low Hammock (High Quality) .80 Low Hammock (Moderate Quality) .60 Low Hammock (Low Quality) . 4 Palm Hammock .90 Cactus Hammock .90 Pinelands (High Quality) .80 Pinelands (Low Quality) .60 Beach Berm .90 Disturbed . 2 Disturbed with Hammock . 2 Disturbed with Salt Marsh and Buttonwood . 2 Disturbed Beach/Berm . 2 Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added) Sec. 9.5-345. Environmental design criteria. No land, as designated on the existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation. (m) Mangroves and Submerged Lands: Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added) From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community. In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan. The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides: Sec. 2-104. Nearshore Waters The Florida Keys are dependent nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant of the biological character of submerged lands. To limit the location of water- dependent facilities at locations that will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes. To limit the location of docking facilities to areas which have adequate circulation and tidal flushing. To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas. To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges. To monitor nearshore water quality to ensure that growth and envelopment is not degrading nearshore water quality. To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated. Sec. 2-105. Wetlands and Associated Systems Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood. In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to the onslaught of storm-driven winds and water. OBJECTIVE To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys. POLICIES To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. * * * Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact. * * * 3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact. The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. . Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest. The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas which could support such growth and could potentially enhance the environmental quality. As far as possible, natural patterns of gradual and dispersed runoff will be maintained. Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported. Marine Resources Areas of Particular Concern Site-specific Designations Lignumvitae Key Aquatic Preserve. * * * Management Policies: B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve. * * * 3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary. Management Policies: * * * B. Development activity on Key Largo, including dredging and filling, urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies A. These biotic communities will be preserved to the fullest extent possible. Natural Vegetative Resources The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy. Natural Vegetation Management Policies In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest. Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals. While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1990.
Findings Of Fact Petitioner Ferncrest Utilities, Inc. owns and operates a sewage treatment plant at 3015 Southwest 54th Avenue, Fort Lauderdale, Florida. It presently services the needs of a population of about 2500 primarily located in three trailer parks, certain warehouses, a 153 room hotel, and several other business establishments. The plant was constructed and operated by a lessee of Petitioner's owners, but, in July 1979, Petitioner became the owner and operator of the facility. At that time, it was determined necessary to secure new operators and upgrade the plant equipment and method of process in order to properly service the existing and anticipated future number of customers in the area covered by a Public Service Commission franchise. Although the plant had been operating at a permitted capacity of 0.25 million gallons per day (MGD), Petitioner planned to expand the capacity to 0.60 MGD by modifying the aeration tank, and adding tertiary sand filters and equipment for clarification. Upon assuming control of the plant, Petitioner found that the 0.25 MGD permitted capacity had been exceeded by approximately 120,000 gallons per day for a number of years. Petitioner estimates that a population of 6,000 could be served under its new proposed design capacity. (Testimony of Forman, Exhibit 1) Pursuant to Petitioner's application for a construction permit, dated May 25, 1979, to modify the existing treatment plant, Respondent issued permit No. DC06-21789 on August 6, 1979. The permit specified that it was for construction of additional tank capacity for an existing 0.25 MGD wastewater treatment plant intended to approve effluent quality, and further stated that plant design capacity would remain at that figure. A subsequent letter from Respondent's subdistrict manager to Petitioner on January 15, 1980, stated that an evaluation of the quality of the surface waters receiving the plant discharge and the effect of such increased discharge would have to be made before processing a request for an increase in permitted flow. (Exhibit 7) On February 8, 1980, Respondent issued a temporary operating permit for Petitioner to temporarily operate a 0.25 MGD contact stabilization sewage treatment plant, including additional tank capacity and tertiary filtration. Specific conditions attached to the permit stated that it was issued to give the permittee a reasonable period of time to complete construction of the modification outlined in DER Permit DC06-21789 and for subsequent assessment of the effects of discharge on receiving waters. The conditions further required that the facility continue to achieve 90 percent removal of BOD5 and total suspended solids at all times with specified average daily discharges of such substances. Another condition required that the effluent from the plant be adequately chlorinated at all times so as to yield the minimum chlorine residual of 0.5 parts per million after a minimum contact period of 15 minutes. (Exhibit 8) Thereafter, on July 21, 1980, petitioner filed the instant application for an operation permit for the facility at a design capacity of 0.60 MGD. On October 7, 1980, Petitioner filed a certificate of completion of construction. By letter of December 16, 1980, Respondent's South Florida Subdistrict Manager advised Petitioner that the application for an operating permit had been denied for the reason that monitoring of the Class III receiving waters by the Broward County Environmental Quality Control Board indicated that the dissolved oxygen concentration was frequently below the minimum of 5 milligrams per liter required by Section 17-3.161(1), Florida Administrative Code, and that Petitioner's plant contributed to the substandard conditions in those waters. Petitioner thereafter requested a Section 120.57(1), F.S., hearing. (Exhibits 1-2, 4, 8) Petitioner's plant discharges into the North New River Canal through a six inch effluent pipe. The canal extends from Lake Okeechobee to the intracoastal waterway approximately five miles in distance from the point of discharge of Petitioner's plant. Monitoring of water quality in the canal for the past several years by the Broward County Environmental Quality Control Board shows that the dissolved oxygen concentrations at various sampling stations have ranged from below one part per million to in excess of five parts per million, depending upon the season of the year. However, at no station did the dissolved oxygen concentration reach an average of five parts per million. In addition, the tests also showed that BOD5 is generally low in the canal waters. (Testimony of Mazzella, Exhibits 1, 3, 5) Petitioner's modified plant is now capable of treating 0.60 MGD and meets current basic state requirements of 90 percent (secondary) removal of BOD and total suspended solids. In fact, the plant has tertiary treatment and can consistently operate at a level of 95 percent treatment. The data submitted by the applicant as to effluent water quality characteristics showed removal of 98 percent BOD, 97 percent suspended solids, 50 percent total nitrogen, and 25 percent total phosphorus with an average chlorine residual in the effluent of 0.2 parts per million. The dissolved oxygen level in the effluent has been established at 6.5 milligrams per liter. (Testimony of Hermesmeyer, Dodd, Exhibit 1) Respondent's district personnel took one 24-hour sample of the effluent from Petitioner's plant in March 1981 and determined that a concentrate of 14.6 milligrams per liter of ammonia was being discharged to receiving waters. Respondent therefore determined that the dissolved oxygen levels of the canal would be further degraded because approximately 48 to 50 parts per million of dissolved oxygen would be necessary to offset the effects of oxygen removal resulting from the ammonia discharge. Respondent further found that, although the effluent from the plant had 6.5 milligrams per liter of dissolved oxygen, the amounts of phosphorus and nitrogen being discharged could lead to algal blooms and consequent eventual eutrophication of its waters. Respondent's reviewing personnel therefore considers that there would be negative impacts upon the receiving waters if Petitioner discharged its prior licensed capacity of 250,000 gallons per day, and that a discharge of 600,000 gallons per day would double such impacts. Respondent's personnel therefore believes that although Petitioner's facility meets the basic secondary treatment requirements of Rule 17-6.01, Florida Administrative Code, it does not meet the water quality-based effluent limitation specified in Rule 17-6.10. In order to meet such requirements, it would be necessary to redesign the plant for more efficient removal of nutrients or to redirect the discharge. (Testimony of Mazzella) Other facilities adjacent to or near the North New River Canal discharge directly or indirectly into the canal waters and contribute to an unknown degree to the poor quality of the canal waters. Additionally, agricultural use of land produces stormwater runoff containing fertilizer residue into the canal in an unknown amount. A sewage treatment plant operates at optimum level of treatment when it discharges at about 50 percent of its treatment capacity. (Testimony of Mazzella) In 1983, Broward County will require Petitioner's plant to conform to state advanced waste treatment criteria which will provide for additional removal of nitrogen and phosphorus from effluent. To meet this requirement, Petitioner, plans to investigate the possibilities of utilizing a landlocked lake on its property near the treatment plant as a seepage pond. Although Petitioner's plant is identified in area regional plans to be diverted to the Hollywood wastewater treatment plant in the future, there is presently no target date for tying in to such a regional facility. (Testimony of Hermesmeyer, Exhibit 1)
Recommendation That Respondent issue a permit to Petitioner for the operation of its sewage treatment plant, with appropriate conditions as designed to protect the receiving waters. DONE and ENTERED this 27th day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 27th day of May, 1981. COPIES FURNISHED: Alfred Clark, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Martin S. Friedman and R.M.C. Rose, Esquires Myers, Kaplan, Levinson, Kenin and Richards 1020 East Lafayette Street Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
The Issue The issue for consideration in this case is whether the Department of Environmental Protection should issue a permit to Sarasota Bay Hotel, Inc., to modify and expand an existing marina facility associated with an existing adjacent hotel, based on reasonable assurances from the applicant that the proposed project satisfies the applicable statutory and rule criteria.
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection (Department) was the state agency in Florida responsible for the review of environmental resource permit applications and for the regulation of water pollution in specified waters of the state. SBH is a Florida corporation and the general partner of Hotel Associates of Sarasota, Limited (Hotel Associates), the owner of the property in question. The complex at issue is composed of the Hyatt Hotel and certain submerged land underlying the proposed project. SBH is the authorized agency for Hotel Associates for the purpose of obtaining the permit in issue. Petitioners are associations of condominium owners whose properties lie adjacent and to the west of the site in question. The parties stipulated that all Petitioners had standing in this proceeding. The site at issue, owned by Hotel Associates, consists of a portion of the submerged bottoms within a sea- walled, rectangular-shaped, man-made basin which runs in a north-south direction west of U.S. Highway 41 in Sarasota. It is connected by a narrowed channel to Sarasota Bay at its southern end. Hotel Associates owns approximately the northern one-third of the basin, and Petitioners own approximately the western one-half of the southern two-thirds of the basin. Petitioners' property is not covered in the proposed permit. The remaining portion of the basin, comprised of the eastern one-half of the southern two-thirds, is owned by an entity which is not a party to this action, and that portion of the bottom also is not covered by the proposed permit. However, in order for boat traffic to reach the property in issue, the boats must traverse the southern two- thirds of the basin. Both Petitioners and the unconnected third owner maintain existing finger piers within their respective portions of the basin outside the portion in issue. The basin in which the marina in question is located is classified as a Class III water body and is connected to Sarasota Bay, which is a Class III Outstanding Florida Water. Sarasota Bay is located approximately twelve hundred feet from the head of the basin and approximately eight hundred feet from the southern property line of the basin. As of the date of the hearing, the applicant, SBH, operated a permitted marina facility within the perimeter of the property in issue. This permit was issued years ago after the fact; that is, after the marina had already been constructed. As it currently exists, the marina is made up of perimeter docks which adjoin the northern and eastern sides of the basin and includes eight finger piers which provide ten to fifteen slips. In addition, a perimeter dock extends around an existing restaurant which sits on pilings over in the northeast end of the basin. Repairs and modifications were made to the facility under then-existing exemptions in 1995. These included the replacement of numerous copper, chromium, and arsenic (CCA) treated pilings and the re-decking of existing walkways and finger piers with CCA-treated wood. At the present time, seven of the finger-pier slips are under lease to a commercial charter fleet, Chitwood Charters, and one slip located along the perimeter dock is leased to a dive boat operation, Scuba Quest. At least one other finger-pier slip has a boat docked at it for an extended period. This boat is owned by Charles Githler, president of SBH. The remaining finger-pier and perimeter slips are ordinarily used on a transient basis by guests of the Hyatt Hotel and the restaurant. The existing facility, including the finger piers slips and the perimeter slips, contains approximately 6,700 square feet of docking space and is designed to accommodate between twenty to thirty boats, depending upon the length of the boats. On occasion, however, as many as 40 to 60 boats have been docked at the facility. At times, when demand increases, the larger slips have been subdivided to allow up to four boats to be stern-moored per slip. Even more boats have been docked at the facility for boat shows by the use of stern mooring or "rafting," which calls for boats to be moored tied together, side by side, out from the docks. By application dated May 18, 1999, and received by the Department's Tampa District office on June 16, 1999, SBH sought to obtain from the Department a permit to modify and expand its existing marina facility. It proposed to expand the existing approximately 6,700 square feet of dock space to approximately 7,000 square feet, thereby creating a marina with 32 designated slips. Conditions to issuance of the permit, agreed to by the applicant, include a limitation on the number of boats which may be moored at the facility at any time and the addition of storm water treatment capability to the existing storm water drainage system. SBH also agreed to reduce the terminal end of the middle pier from 900 to 400 square feet. SBH also agreed to accept the imposition of several other permit conditions required by the Department, and to offset any impacts on wildlife and water quality as a result of the operation of the permitted facility. In addition to requiring that all long-term slip leases incorporate prohibitions against live-aboards and dockside boat maintenance, these conditions include the following: Overboard discharges of trash, human or animal waste, or fuel shall not occur at the docks. Sewage pump-out service shall be available at the marina facility. * * * 18. Fish cleaning stations, boat repair facilities and refueling facilities are not allowed. 20. There shall be no fueling or fueling facilities at the facility. * * * 28. The shoreline enhancement indicated on Attachment A shall be implemented within 30 days. * * * 30. The permittee shall perform water quality monitoring within the basin at the locations indicated on Attachment A semiannually (January and July of each year) for a period of 5 years. * * * All piles shall be constructed of concrete with exception of 18 mooring piles identified in permit submittals. This permit authorizes the mooring (temporarily or permanently) of a maximum of [32] watercraft at the subject facility. A harbormaster must be designated and maintained at the subject facility. In order to be in compliance with this permit, the ”OARS Ultra-Urban" hydrocarbon adsorbent insert, or Department approved equal, must be installed within the catch basin inlets as shown on the approved drawings. At a minimum, the hydrocarbon adsorbent material shall be replaced and maintained in accordance with manufacturer's instructions. More frequent inspections and replacement of the filtration media may be required, depending on local conditions and results of the required water quality monitoring. * * * The permittee/grantee/lessee shall ensure that: In order to provide protection to manatees during the operation of this facility, permanent manatee information and/or awareness sign(s) will be installed and maintained to increase boater awareness of the presence of manatees, and of the need to minimize the threat of boats to these animals. SBH has also agreed to replace existing CCA-treated wood decking with concrete and fiberglass decking and to replace approximately 80 existing CCA-treated wood pilings with concrete pilings. Based on its analysis of the permit application and the supporting documentation submitted therewith, the Department, on March 2, 2000, entered a Notice of Intent to issue the permit for this project. Shortly thereafter, on March 25, 2000, after obtaining a minimal extension of time to file, the Petitioners filed a Petition for Administrative Hearing opposing the issuance of the proposed permit. Departmental decisions on water quality permits such as that in issue here are dependent upon the applicant satisfying the Department's requirements in several identified areas. These include the impact of the project on water quality; impact of the project on the public health, safety, and welfare; impact of the project on the conservation of fish and wildlife, including threatened or endangered species; impact of the project on navigation, the flow of water, erosion and shoaling; impact of the project on the immediate fishing, recreational values and marine productivity; impact of the project on archeological resources; impact of the project on the current condition and relative value of functions currently performed by areas to be affected; whether the project is permanent or temporary; and a balancing of the criteria, cumulative impacts, and secondary impacts. Addressing each of these in turn, it is clear that the current quality of the water within the existing marina is below established standards. Respondents admit that Petitioner has shown that the existing marina operation has diminished water quality conditions and created an environment that has potential adverse impacts to the fish and wildlife which frequent the basin as well as some of the neighboring property owners. This is not to say that these impacts were envisioned when the basin was constructed. However, other than as they relate to fish and wildlife and to water quality, the problems created by the marina do not relate to most permit criteria. The Respondent's experts calculate that due to its configuration and location, the basin naturally flushes approximately every 14.75 days. This is an inadequate time period to fully disperse any pollutants found in the basis. As a result of the inadequate flushing and the continuing use of the basin as a marina, there are resulting impacts to the water quality surrounding the existing facilities. Mr. Armstrong, Petitioner's water quality expert, indicated the project as proposed would lengthen even further the flushing time because of the addition of new boats and, to a lesser degree, the additional pilings and dock structure. These additions would, he contends, result in additional obstructions to water movement and cause a resultant increase in flushing time. While flushing is not a requirement of the permit, it has a bearing on water quality which is a consideration. Petitioners also argue that the mitigation measures proposed in the permit are inadequate and attack the qualifications of Mr. Cooper, the Department's storm water engineer. They point out alleged errors in Cooper's analysis and cite Mr. Armstrong, an individual with significant experience in water quality monitoring and analysis, to support their other witnesses' conclusions that more boats will increase the risk of hydrocarbon pollution from gasoline and diesel engines. Petitioners urge that the increased contamination, when coupled with the slow flushing action, would tend to settle down to where the pollutants enter the water - in the basin. Since it is clear these impacts would exist and continue even were the pending project not constructed, the issue, then, is whether the proposed project will worsen these environmental impacts. Respondents' authorities calculate they would not. In fact, it would appear the proposed changes called for in the permit, the removal of CCA-treated wood and its replacement with concrete piling and decking and the installation of storm water treatment apparatus, would reduce the adverse impacts to water quality within the basin and, in fact, improve it. It is so found. An issue is raised in the evidence as to the actual number of boats which can effectively use the marina at any one time. SBH contends the present configuration calls for between twenty to thirty boats. Evidence also shows that at times, during boat shows for example, many more boats are accommodated therein through "rafting." Even if the facility is expanded by the most significant number of slips, there is no concrete evidence there would be a significantly increased usage. The current usage is normally well below capacity. Modifications proposed under the pending permit could add as many as ten to fifteen additional slips. The Department has considered it significant that SBH has agreed to limit the number of boats that can be docked in this marina, even after modification. Unfortunately, no specific figure has been given for this limit, and, therefore, it cannot be shown exactly how much long-term water quality benefit can be expected. Nonetheless, it is a reasonable conclusion to draw, as the Department has done, that if the number of boats is limited to a figure at or even slightly higher that that which is currently experienced, a long-term benefit can be expected with the implementation of the other mitigation conditions. This benefit currently cannot be quantified, however. What can be established, and all parties agree, is that the basin currently does not meet water quality standards for copper and dissolved oxygen. The proposed permit addresses the issue of dissolved oxygen by requiring SBH to follow best management practices in the operation of the marina; to treat storm water discharge which enters the marina; and to provide a sewage pump-out station at the marina which would prevent the discharge of sewage into the water. The issue of the water's copper level is addressed by the removal of the CCA-treated pilings and decking and their replacement with concrete and fiberglass; the treatment of the storm-water discharge before its discharge into the basin; and the hiring of a harbor master to ensure that the prohibition against hull scraping at the basin is complied with. A restriction on the number of boats allowed into the marina at any one time would also treat the copper problem by reducing the exposure to anti-fouling paint containing copper. This is a condition of the permit. It is important to note that under existing statutory and rule exemptions, SBH could repair or replace the existing dock structure without the need for a permit. However, the issuance of a permit which permits modification and a slight expansion of the facility will prohibit the replacement of the existing CCA-treated wood with CCA-treated wood. The concrete and fiberglass pilings and decking will not leach copper into the water and, in time, should result in a lower concentration of that substance in the water. Another consideration of the permitting authorities relates to the impact the project would have on public health, safety, and welfare. Petitioners expressed concern that an increase in the number of slips called for in the proposed project would cause an increase in the number of boats that utilize the basin. Currently, though there are a limited number of slips available, there is no limitation on the number of boats which may use the facility. A reasonable estimate of capacity, considering the configuration of the docks and slips and the permit limitations established, indicates that no more than thirty-two boats will be permitted to use the basin at any one time. If this limitation is followed, it is reasonable to expect an improvement in the water quality. Petitioners also express concern that an increase in the number of authorized boats using the marina will result in an increase in the number of boats traveling at excessive speeds in entering and exiting. No evidence was introduced in support of this theory, but, in any case, Respondents counter- hypothesize that the increase in allowed boats will result in an increase in long term lessors over transients, and suggest that long term users are more considerate than transients. Neither side presented any substantial evidence in support of its positions. The impact on the conservation of fish and wildlife is a mandated consideration by the agency. No evidence was presented by either side regarding the existence of fish and wildlife in the area, much less threatened species, other than manatees. To be sure, these noble creatures inhabit the marina at times in appreciable numbers. The threat to them, however, comes from boat strikes, and no evidence was presented as to the number of strikes caused by boats in the marina or its approaches or the seriousness of these strikes. The agency to which the review of impacts to manatees was left, the Florida Fish and Wildlife Conservation Commission (FWCC) opined that the permit cap of 32 boats would keep to a minimum the potential impact to manatees from this project. Any increase in the number of boats, and the minimal impact increase thereby, should, it was considered, be offset by compliance with permit conditions. This opinion was contradicted by Mr. Thompson, Petitioner's manatee expert, who argued against any increase of boat traffic in manatee areas. This position is not the policy of the Department and is not controlling here. Further, it would appear this expert did not consider any mitigation factors proposed by SBH, as the Department is required to do. Taken together, the weight of the evidence supports a finding that the expected impact of this project on fish and wildlife, including those threatened and endangered species, is minimal. Based on the evidence of record, it is found that the expected impact of this project on navigation, the flow of water, erosion, and shoaling in the vicinity is virtually non- existent. The only factor bearing on this issue is the number of boats which will use the facility and its approach. Permit conditions call for a limitation on the number of water craft which will use the facility to be permitted to a number lower than that which uses it, at times, under current conditions. The water is a dead-end harbor, with no through traffic. There is no evidence of either erosion or shoaling now. It would not likely increase. A reduction in traffic as would occur under the conditions imposed by the permit can do nothing but reduce the potential for propeller dredging by boat traffic and the water turbidity that would accompany such strikes. This would improve navigation slightly, and there should be no adverse impact to the flow of water. The evidence presented at hearing did not establish any negative impact on fishing or marine productivity in the vicinity of the proposed project, which is permanent in nature. By the same token, no adverse effect to significant historical or archaeological resources was shown by the evidence of record. The facility in issue is currently a commercial activity consisting of a docking facility and a restaurant. No evidence was introduced to show that the project proposed would have an adverse impact on the current condition and relative value of the current function. In fact, the evidence indicates that the facility would be improved. Though not raised by the evidence, it should be noted that Petitioners presented no evidence that their property values as adjacent property owners, would be adversely effected by this project. In balancing the criteria, cumulative impacts and secondary impacts of the proposed project on the immediate and surrounding area, it appears that the applicant has provided reasonable assurances that the project is not contrary to the public interest. The marina supports the hotel and restaurant which is on it. Adjoining property owners, the Petitioners, expressed concern that the modifications to the existing marina will result in a decrease in water quality in the basin; will increase the potential for fuel spills with their related short term discomforts and long term damages; and will increase the danger to the manatee population which periodically uses the basin. While they are entitled to the quiet enjoyment of their property, it is unreasonable for those who live on the water to expect that the benefits of living by the water would not carry with it the potential for some periodic discomfort created by waterfront activity. The weight of the evidence presented in this case indicates no significant cumulative adverse impacts from this project. To the contrary, the state of the evidence suggests an improvement in water quality and navigation in the basin and its approaches, and any secondary impacts resulting from the accomplishment of the project would be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order issuing to Sarasota Bay Hotel the requested permit to modify and expand the existing marina facility located adjacent to the existing Hyatt Hotel at 1000 Boulevard of the Arts in Sarasota, Florida. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Barbara B. Levin, Esquire Scott A. Haas, Esquire Abel, Band, Russell, Collier, Pitchford & Gordon 240 South Pineapple Avenue Sarasota, Florida 34236 Graig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Hanson, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street Suite 403 Sarasota, Florida 34237 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Respondent Jacksonville Shipyards, Inc. (JSI) filed a permit application with the State of Florida, Department of Environmental Regulation, (DER), for permission to conduct maintenance dredging in a basin associated with its shipyard operation. This permit application was made in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. In the face of DER's statement of intent to grant this permit, George H. Hodges, Jr., (Petitioner), has petitioned in protest. Therefore, the issues to be considered in this dispute concern the entitlement of JSI to the grant of an environmental permit for maintenance dredging of its shipyard basin.
Findings Of Fact DER is an agency of the State of Florida charged with the environmental protection of waters within Florida. Its authority includes regulatory powers announced in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Certain activities involving state waters require permission from DER before they be lawfully undertaken. Among those activities are dredge projects such as contemplated by JSI in its pending request to be allowed to maintenance dredge as much as 66,000 cubic yards of material per year from its shipyard basin located in Jacksonville, Duval County, Florida. This is an undertaking which is envisioned by Chapter 403, Florida Statutes, related to the permit responsibility of DER. It is specifically addressed by Rule 17-4.28, Florida Administrative Code, in which is found the statement of permit requirements for dredge and fill activities. JSI, the applicant, operates a facility known as Bellinger Shipyard, which is engaged in the repair and maintenance of commercial and naval vessels. This enterprise includes the drydocking of vessels upon which repairs are effected, through the use of several drydock chambers in shipyard basin. In the course of the maintenance, a technique known as "gritblasting" is employed. The purpose of this "gritblasting" is to clean the ships in anticipation of repainting. On occasion the "gritblasting" would remove all coats of paint down to the metal finish of the ship. The paints being removed contain antifouling and anticorrosive materials. Those materials have, among other properties, the ability to repel marine organisms, causing their mortality. The "gritblasting" process utilizes a material known as "black beauty." This is a waste product from firing power plant boilers and it contains iron, silica, aluminum, titanium, magnesium, lime, penta oxide (P2O5), sodium oxide, sulfur trioxide and potassium oxide. The "black beauty" is applied through the use of a pressurized system which forces the material onto the treated surface under pressure of 70 to 85 pounds per square inch. After the preparation is made, vessels under repair are repainted, and similar paint with antifouling and anticorrosive properties is reapplied. During the "gritblasting" process, dust is generated and a portion of that material finds its way into the water within the basin. Other particles being removed drop to the deck surface of the drydock. When paint is reapplied to the surface of a vessel undergoing repair, it is given the opportunity to dry and the vessel is then refloated and removed from the drydock. To do this, the drydock itself is submerged. When the vessel has exited the drydock facility, the drydock resurfaces and is allowed to dry out. The material which has been removed from the surface of the repaired vessel is then shoveled into containers and transported to an offsite sanitary landfill for disposal. This material removed includes the "gritblasting" compound and paint which has been stripped from the surface of the vessel. When the drydock is submerged following vessel servicing, the inference can be drawn that a certain amount of the materials on the drydock deck surface will be introduced into the water within the basic before the drydock is resurfaced. The arrangement for refloating the vessel is the reverse of the technique employed in lifting the vessel out of the water for maintenance. When the vessel is brought in for service, it is guided into a submerged drydock. Water is then pumped out of the hollow drydock walls and deck to raise the vessel out of the water, allowing access to the vessel, which is completely above the water surface, as is the drydock work deck. The basin in which the business activities of JSI take place is located on the western shore of the Intercoastal Waterway. The Waterway and basin are part of an estuarine system, as these water bodies are tidally influenced. The basin and the Intercoastal Waterway constitute Class III waters of Florida. The configuration of the basin is as found in JSI Exhibit 16, an aerial photograph of the site. Moving from east to west within the basin, it is approximately one thousand feet from the Intercoastal Waterway to the back of the basin in its western-most extremity. In the back area of the basin the north- south axis is 250 feet. The interface between the basin and the Intercoastal Waterway on the eastern reach north-south axis is approximately 625 feet. There are no obstructions to the confluence of the Intercoastal Waterway and the eastern side of the repair basin. The southern-most reach of the basin is approximately 350 feet in length running east to west. On the eastern side of the basin there is a pier area which is roughly 360 feet north-south by 60 feet east-west. As described before, the pier is not a solid structure extending to the bottom of the water. Thus, water can be exchanged between the basin and the Intercoastal Waterway beneath the pier. JSI had acquired the Bellinger Shipyard in 1974. At that time environmental permits had been issued allowing for the maintenance dredging of the basin. These permits were valid through 1975. In 1975, JSI obtained a dredge and fill permit from the Florida Board of Trustees of the Internal Improvement Trust Fund, as well as a dredge and fill permit from the United States Corps of Engineers. These permits were for a ten-year period. They allowed maintenance dredging in the amount of 66,000 cubic yards per annum and for the disposal of the dredged material in an EPA-approved offshore site. In 1980 DER confirmed the dredge and fill permit that had been obtained from the Florida Board of Trustees. This permit by DER required JSI to conduct monitoring of turbidity during dredging, but did not require employment of turbidity screens. In 1979 the Army Corps had required JSI to conduct bioassay analysis in furtherance of the federal dredge and fill permit. In the face of the results obtained in that bioassay analysis, the Army Corps continued the dredge and fill permit to JSI dating from August 14, 1980. A subsequent extension of the federal permit was given through August 14, 1986. Contemporaneous with the present permit application before DER, JSI has requested further permission from the Army Corps related to the ability to excavate as much as 66,000 cubic yards of material on an annual basis. JSI has not been cited by any regulatory agency related to water quality violations associated with its dredging activity. The present DER permit application is for renewal of the 1980 Permit No. 16-21380 and is being processed under the DER File No. 161071139. This application for permit renewal was submitted on July 16, 1985. The application requests permission to maintenance dredge for a period of ten years. If granted, it is the intention of the applicant to use a closed clam shell bucket to excavate the material in the basin. This choice is in furtherance of the suggestion of DER and is a departure from the applicant's initial intention to use an open bucket to excavate. JSI also intends to employ turbidity curtains during the dredge activities. The applicant intends to transport the dredged material to the aforementioned EPA disposal site which is at sea. In doing so, a hopper barge is propelled by a towing vessel. Both the barge and towing vessel are inspected and certified by the United States Coast Guard. The crews involved in the transport of the material are qualified and licensed. In the past, transport of the material has been done under fair weather and smooth sea conditions, and it is intended that the transportation be done in that same setting if the permit is granted. The barge would not be loaded fully, thereby minimizing spillage. This was the arrangement in the past. The United States Coast Guard will be apprised of the departure time of the voyage in transport of the material, certain activities within that transport and upon return. The hopper barge has a bottom dump which is closed during transport and is opened at the bottom in disposing the dredge material. After satisfying DER about its proposal, JSI was informed that DER intended to grant the dredge permit requested. When Petitioner, George H. Hodges, Jr., the owner of real property adjacent to the site of the project, learned of the stated intention to grant the maintenance dredging permit, he offered a timely petition in opposition to the proposed agency action. This property of Petitioner is in Jacksonville, Duval County, Florida. It is located north of the JSI property at issue. Petitioner's real property is connected to the Intercoastal Waterway. Petitioner has filed this action in opposition to the grant of the permit upon the expressed belief that the dredging activity will cause pollution at his property. In particular, it is JSI's intention at various times in the calendar year to do maintenance dredging in the entire basin. In addition to using a closed clam shell bucket, a system of turbidity barriers or curtains will be employed in segmented dredge areas. Those several locations within the basin which are cordoned off with the turbidity curtains are as depicted in JSI's Exhibit 9 admitted into evidence. The design maintenance depths for the dredging project are set forth in JSI's Exhibit 4 admitted into evidence. They vary from -17 to -37.5 feet, with the greatest depth being contemplated under drydock number 1 in the northwestern corner of the basin. Near the Intercoastal Waterways the depth sought is -17 feet, transitioning to -21.5 feet moving toward the back of the basin at the western extreme and outside of the area dredged beneath drydock number 1. The depths sought under drydock numbers 2 and 3 are -26.5 feet and -20 feet respectively. These desired elevations correspond to conditions at mean low water. The tidal range in the Intercoastal Waterway adjacent to the basin, which would promote an influence in the basin proper, is in the neighborhood of 4-foot intervals, with two tidal cycles a day. This would mean, as example, that at the high tide range, the shallowest design depths for dredging of -17 feet become -21 feet in the transition from mean low water to mean high water. Those 4-foot variations would pertain to the other design depths contemplated in the dredging as described in the preceding paragraph as well. The turbidity barriers contemplated for use will extend from the surface through the water column to depths near the bottom. See JSI Exhibits 4 and 9. It is desirable, according to Dr. Gregory Powell, witness for JSI, a reliable expert in describing the effectiveness and use of turbidity curtains, to have those curtains extend to an area just above the bottom. Dr. Powell's education includes a Masters Degree in coastal and oceanographic engineering and a Ph.D. Degree in engineering mechanics, with emphasis on coastal and oceanographic engineering. In consideration of his remarks, under the influence of high tide there could be as much as a 4 foot gap between the curtain and the bottom. Powell and other experts who offered testimony agreed that turbidity screens can have effectiveness in areas of low current velocity, assuming the proper installation, maintenance and extension to a location near the bottom of the water body. If mismanaged, turbidity screens are not effective in controlling turbidity. Moreover, they are less effective in areas where significant current velocities are experienced. This would include the circumstance in which a foot and a half or more per second of flow was being experienced, according to Dr. Powell, whose opinion is accepted on this point. He also indicated that the quiescent areas in the basin, toward the back of the basin or western dimension of the basin, would show a flow regime in a rate of one centimeter per second. This expression is credited. Although, as described by Dr. Powell, the currents in the Intercoastal Waterway are moving at a rate approximating nine feet per second on ebb time at the bridge located on the Intercoastal Waterway to the south of the project site, these current velocities are not expected in the area where the dredging is occurring. Dr. Powell is correct in this assessment. As he describes, and in acceptance of that testimony, eddies from the current from the Intercoastal Waterway at peak flood tide could come into the basin and temporarily show velocities of one foot per second; however, these velocities are within the acceptable range of performance of the turbidity barrier. Dr. Powell's conclusion that wind would have no significant effect on the current velocity, given the depth of this basin, is also accepted. The remaining flow regime in the basin is not found to be a detriment to the function of the turbidity barriers. The use of turbidity curtains in this project is not found to be a "placebo" to placate DER as suggested by Erik J. Olson, engineering expert who testified in behalf of the Petitioner The monitoring that is intended in the course of the dredging activities would call for examination of background turbidity levels at three sites in the Intercoastal Waterway prior to commencing of dredging and twice daily at each of these sites during dredging. Should a violation of state water quality standards for turbidity be detected, dredging will cease until the problem with turbidity can be rectified. To provide ongoing assurances of compliance with water quality standards, JSI will analyze the sediment in the basin for the parameters of cadmium, copper, aluminum, lead, mercury, oil and grease every two years. Dr. Powell, expert in engineering and recognized as an expert in the matter of transport of the resuspended sediment associated with the dredging, as well as David Bickner, the project review specialist for DER, believe that the use of the closed clam shell bucket technique and employment of siltation screens or barriers, together with turbidity monitoring, will effectively protect against turbidity violations in the Intercoastal Waterway adjacent to the basin. This opinion is accepted. Bickner brings to his employment a Bachelor of Science degree in biology and a Master of Science degree in ecology. Bickner identified the principal concern of DER related to this project as the possibility of release of resuspended sediments into the Intercoastal Waterway. With the advent of the techniques described in the previous paragraph, only minimal changes in background conditions related to turbidity are expected. Although there would be turbidity violations within the confines of the areas where the dredging occurs, the principal influence of that turbidity will be confined in those regions. This speaks to dredge areas I, 2 and 3. According to Bickner, whose opinion is accepted, the turbidity changes within the dredge areas in relationship to background conditions do not require a mixing zone permit, nor do they constitute a basis for denial of the permit. As alluded to before, and as described by Dr. Powell, the basic nature of the basin in question is one of quiescent conditions with low current velocity. He points out that the layout of the basin is such that it is a sediment trap allowing the deposit of silt, in particular in the deeper sections of the basin near the western side. The greatest influence by resuspension of sediment in the dredging activities can be expected in the back portions of the basin and it is in this area that the silt barrier can be expected to be most efficient, based upon Powell's remarks. Dr. Powell indicated that there is the expectation of increased efficiency in turbidity control when a closed clam shell bucket is used, as opposed to the open style of clam shell bucket. Those efficiencies range from 30 to 70 per cent. There is some risk of increased turbidity near the bottom of the water column in the use of a closed clam shell bucket, and for that reason the applicant should monitor the activities of the operator of the excavation machinery to guard against inordinate disturbance of the area being excavated. On balance, the closed clam shell bucket is a superior technique to the open style of clam shell bucket excavation when those alternatives are compared. As Dr. Powell explained, the segmentation of the dredge area allows the resuspended sediment to be confined in more discrete circumstances and to be controlled. The location of the silt barriers behind the pier structure guard against the effects of eddying. The silt barriers can be properly anchored and will not be unduly influenced by current velocity. Dr. Powell believes that the use of silt barriers, taking into account a low velocity of current in the basin, and the proper deployment of the siltation screen could bring about a reduction of the resuspended solids by 80 to 90 per cent on the outside of the barrier. To calculate the influence or the environmental significance of that remaining 10 to 20 per cent of resuspended solids at the Intercoastal Waterway, Dr. Powell testified that the suspended load behind the silt curtain resulting from the dredging is expected to average from 100 milligrams per liter to a peak amount of 500 milligrams per liter. He believes that, depending on which methods of calculation is used, the dilution factor in the Intercoastal Waterway ranges from 330:1 to 600:1. In using an environmentally conservative assessment, that is 80 per cent effectiveness of the silt curtain with a 330:1 ratio, Powell calculated that the release of resuspended materials into the Intercoastal Waterway would be approximately .3 to 1.5 milligrams per liter. This translates to less than 1 NTU against background conditions. This result would not exceed the 29 NTU limit against background that is described as the standard for turbidity control. Dr. Powell's opinion of turbidity results based upon the dredge activity is accepted. There is exchange of water between the basin and the Intercoastal Waterway and to accommodate this influence, the turbidity curtains would be placed in such a fashion that they would not compete with the ebb and flow of the tide. Dr. Powell's assessment of the circumstance in describing the effectiveness of turbidity barriers takes into account the tidal conditions and the inappropriateness of trying to have the silt curtains prohibit the flow conditions during these tidal changes. In order to promote maximum effectiveness of the turbidity barriers during the entire course of excavation of materials, the length of, the silt screen must be adjusted as desired elevations are approached. Erik J. Olson is an expert in civil engineering with an emphasis on hydraulics and the holder of a Masters Degree in coastal and oceanographic engineering. As alluded to before, he questions the validity of the use of siltation barriers as an effective protection against the implications of turbidity. He properly points out that the curtains will not extend to the region of the interface of the basin and the water column at all times. He describes the exchange of water between the basin and the Intercoastal Waterway, to include the unrestricted sediment transport beneath the turbidity curtain. He believes that wind can cause changes in current velocity as great as .2 foot per second, activities within the basin an additional .3 foot per second, and eddying .3 foot per second. All of these taken together do not exceed the range of effective response of the turbidity barriers. On balance, Olson's criticism of the benefit of turbidity curtains is unconvincing. Arlynn Quinton White, Jr., who holds a Bachelor of Science Degree, a Master of Science Degree in biology and a Ph.D. in matters related to marine biology, offered his testimony in support of Petitioner. He believes that as much as 2 to 3 per cent of the resuspended sediment related to the dredging activities would reach the Intercoastal Waterway under the best of conditions. It is difficult to translate that testimony into a measurement of changes in turbidity levels against ambient conditions in the Intercoastal Waterway. In any event, as already indicated, the changes in turbidity levels are not expected to exceed 29 NTU against background. It is evident that the turbidity curtains are necessary and their proper use must be assured to protect against problems associated with turbidity and the implications of the constituents of the resuspended particulate matter related to possible toxicity. Therefore, the close monitoring suggested in the statement of intent to grant the dredge permit is viable. Another matter associated with the implications of turbidity pertains to the fact that when the dredge material has been resuspended, as much as two days could pass before the basin returns to background conditions, given the high content of silt with its attached metals. This becomes significant given the uncertainty of the location of the dredge equipment during the course of excavation, i.e., inside the barrier or outside the barrier. Final choice about the placement of the dredge equipment will have to be made at the time of the excavation. Should the dredge equipment be inside of the cordoned area while excavation is occurring, it would be necessary to allow turbidity conditions to achieve background levels before opening up the barrier for the exit of the hopper barge which contains the excavated material. Otherwise, the estimates as to the influence of the dredging activities in the Intercoastal Waterway are unduly optimistic. Likewise, if the excavation platform is placed outside of the work site, that is to say, on the outside of the siltation curtain, extreme caution must be used to avoid spillage of the excavated material when being loaded onto the hopper barge. The occasions in which the excavation is being made from this side of the barrier should be minimized. These safeguards are important because any changes in sediment loading within the Intercoastal Waterway promote an influence in the area immediately adjacent to the basin and other sites within the Intercoastal Waterway as well. The subject of the use of a hydraulic dredge as an alternative to excavation by use of a closed clam shell bucket was examined in remarks by the witnesses appearing at hearing. Olson believes that there are hydraulic dredges which can achieve the design depth contemplated by the project and which equipment could fit inside the basin area. This is contrary to the opinion of witnesses for the applicant and DER who do not believe that the hydraulic dredging equipment which would be necessary to achieve the design depths would fit into the basin area. On balance, the record does not establish that such equipment with the appropriate capability and size does exist. More importantly, the proposed method of excavation is environmentally acceptable when examined in the context of the permit sought in this case. Finally, it was not essential for the applicant to make a detailed investigation of availability of hydraulic dredging equipment and it is not determined that failure to make this investigation warrants the denial of the requested permit. Although an hydraulic dredge is more desirable from the standpoint that it causes less turbidity through resuspension of sediments, it is not the only plausible method of excavation in this instance. Raymond D. Schulze testified in behalf of JSI. He holds a Bachelor of Science Degree and a Master of Science Degree in environmental engineering sciences. In particular, he established the fact that the amount of resuspended solids that would be introduced into the Intercoastal Waterway associated with the dredging activity would not result in the smothering of organisms or to clogging of gills of fish. In addition to the possible problems with turbidity, there is the additional issue of violation of water quality standards in the several parameters associated with concentrations of metals in the water column within the basin and in the sediments or related parameters such as dissolved oxygen and biological integrity. Having considered the testimony, the facts do not point to water quality violations for any parameters occurring in the Intercoastal Waterway as a result of the dredging. To arrive at this factual impression, the testimony of Dr. Pollman and Schulze is relied upon. Water quality sampling done by JSI in locations within the basin and in the Intercoastal Waterway, that by Dr. Pollman and Schulze, supports their impression of the acceptability of the dredge activities. This water quality data was admitted as JSI's Exhibit 18. Additionally, the field conditions existing at the time of testing, to include water temperature, weather conditions, tidal cycle, ph and dissolved oxygen were also made known. This water quality data and other information examined by these witnesses points to the fact that no increases in concentrations of metals are occurring within the Intercoastal Waterway as a result of the business activities of the applicant, nor are they to be expected while dredging operations are under way. Dr. Pollman correctly identifies the fact that there will not be significant degradation of water quality, above DER's minimum standards, related to the Intercoastal Waterway based upon the dredging activities within the basin, dealing with the water quality parameters of mercury, zinc, cadmium, chromium, lead, aluminum, iron and copper, substances which are within the basin. Dr. Pollman also examined sediment data collected by DER, and that data tended to confirm his assessment of the influences of the dredging activity related to these parameters. Dr. Pollman does not believe that metal concentrations contained in the sediment of the basin are leaching into the water column in quantities sufficient to cause violation of water quality standards. His opinion is accepted. Pollman had collected water quality samples in the two locations where the greatest siltation rate was expected and as a consequence the greatest concentration of metals would be expected. The water quality samples were taken at several depths to reach an opinion as to the matter of leaching of metals into the water column and the possibility of those metals dissolving in the water column. If leaching had been occurring, a concentration of metals expressed as a gradient would be expected. The greatest concentration in this instance would be near the sediment interface with the water column. No such gradation was detected and the idea of leaching was ruled out. Bickner's testimony established that testing for the exact amount of iron present at the dredge site was not required, given the nature of the iron source being introduced into the water within the basin. Bickner did not find that type of iron to be toxic. As stated before, Pollman agrees that no violation of state water quality standards as a result of the presence of iron associated with the maintenance dredging should be expected. There is some data which shows water quality violation for mercury in the basin and the Intercoastal Waterway. Subsequent water samples collected by Schulze in the westerly portion of the basis did not show detectable levels of mercury. Moreover, data taken by Pollman and Schulze and compared with the DER sediment data shows that the concentration levels of mercury are greater in the Intercoastal Waterway than in the basin, thereby suggesting that there is no concentration gradient for mercury which would lead to the belief that the basin contributes to the amount of mercury found in the Intercoastal Waterway, nor is the mercury believed to be leaching into the water column in the basin. The explanation of the differences in measurements of the amount of mercury in the basin, depending upon the point in time at which analysis was made, may be attributable to a natural phenomenon, given numerous sources of mercury within the environment. Whatever the explanation of these changes, Dr. Pollman does not believe that the release of mercury associated with the resuspended sediments that may find their way into the Intercoastal Waterway would show a violation of the state water quality standard for mercury in that water body and his opinion is credited. Data collected by Pollman and Schulze did not show water quality violations for aluminum and the DER test data described before indicated aluminum levels lower in the basin than in the Intercoastal Waterway. Some data collected by Technical Services, Inc., an environmental consulting firm in Jacksonville, Florida, which was reviewed by Pollman, Schulze, and Bickner showed a substantial violation of the water quality standard related to aluminum in sediment sampling that was done. The origin of that amount of aluminum found on that occasion was not clear. It is possible, as described by Bickner, Pollman and Schulze, that the level detected In the Technical Service report could have occurred based upon natural phenomena such as storm water runoff from uplands. Bickner also questioned the findings of Technical Service and felt like the determination might be influenced by some intervening circumstance which would promote the need for re-analyzing that parameter. Whatever the explanation of the findings in the Technical Service report, it does not point to any water quality violation of the standard related to aluminum based upon the dredging activities, given the limited amount of total suspended solids that would be introduced into the Intercoastal Waterway. Schulze, in his assessment of the implications of metal concentrations in the sediment transported to the Intercoastal Waterway, did not find them to cause concern about toxicity to marine life in the Intercoastal Waterway. This point of view is accepted. In trying to understand the implications of metal concentrations, Schulze believed that the biologically available fractions of those metals in the sediment is not very high, and when the dilution of the sediments which occurs in these circumstances is examined, no toxicity is expected. Moreover, as Dr. Pollman described related to the parameter aluminum, it is not a toxic material at the ph levels found in the basin, and the resuspension during dredging will not cause it to gain toxicity. This opinion of Dr. Pollman is supported by Bickner and Schulze. The opinion of Dr. White that the amount of aluminum, copper and zinc within the sediment found in the basin would eventuate in the violation of water quality standards for those parameters when introduced into the Intercoastal Waterway is rejected. The information available to Pollman, Schulze and Bickner which describes their opinion about water quality standards was sufficient to reach an opinion, the position of Petitioner's witness Sanford Young, holder of a Bachelor of Science Degree in civil engineering and a Master of Science Degree in zoology notwithstanding. As Bickner indicated in his testimony, it is essential that an applicant give reasonable assurances of compliance with all parameters listed in Chapter 17-3, Florida Administrative Code, dealing with water quality. However, this does not mean that testing must be done for each parameter set forth in that chapter. Reasonable assurance has been given that water quality parameters as identified in that chapter will not be violated. Bickner indicates the biological integrity standard is not one of concern in that given the nature of business operations within the basin, there is no expectation of a stable benthic community which might be disturbed by dredging. From the remarks of Schulze, there is no prospect of danger to benthic communities within the Intercoastal Waterway. These impressions by Bickner and Schulze are accepted. Under the facts of the case, the failure of the DER permit appraisers to discover benthic organisms in the sample grabbed at the site is not unexpected. There is also some question about whether that sample is representative of the circumstance at the site, given the limited sampling. On the topic of normalization of the DER data which was described in the course of the hearing and is identified by Dr. Pollman, the value of that information is seen as establishing the relative quantities of certain metals within the basin as compared with other sites throughout the Intercoastal Waterway. Twenty-one different locations were involved in this analysis. Concentration ratios using aluminum to normalize the data are as reflected in JSI's Exhibit 17 admitted into evidence. The significance of this information as it grossly describes whether the basin routinely contributes to increases in the amounts of these metals within the Intercoastal Waterway. Overall, basin activities are not shown to have promoted such an outcome. This normalization comparison does not address the issue of site specific water quality violations; however, no such violations are expected associated with the dredging activities within the basin as it relates to violations in the adjacent Intercoastal Waterway. Schulze had made sampling related to dissolved oxygen within the basin and the Intercoastal Waterway. As Schulze describes, the levels of dissolved oxygen seem to be at their lowest point just prior to the dawn hours. Sampling which he did was done at 5:00 a.m. in order to obtain the lowest dissolved oxygen readings. Three sites were sampled within the basin and an additional site was sampled in the Intercoastal Waterway. Readings were taken at varying depths at each site to gain an impression of the overall water column. The mean reading for the circumstance was in excess of the required range for state water quality, that is 4.0 per million. Having considered the evidence, no problems with dissolved oxygen are expected in that deficit contribution is in the range of .1 milligram per liter, per Pollman. In addition, Dr. Powell, through modeling, examined the implications of long-term dredging activities on the topic of dissolved oxygen. He employed field data gathered by Schulze in this assessment. This modeling established that decreases in dissolved oxygen levels would range from .1 to .15 milligrams per liter. Given the average of 4.5 parts per million oxygen in the basin at present, the incremental decreases in dissolved oxygen levels related to the dredging would not pose a problems with state water quality standards for dissolved oxygen other than short-term effects in the immediate vicinity of the dredge area, which is an acceptable deviation. As the Petitioner urges in its fact proposal, a 1983 report of Technical Services, Inc., JSI Exhibit 4, and a 1985 report of that firm, JSI Exhibit 7, were made available as part of the application. Officials within Technical Services, Inc. did not appear at the hearing and offer testimony related to the specific findings found in those reports. This information was used by the experts who did testify on behalf of the applicant, in particular Dr. Pollman, as data to question, his assumptions made about the implications of the project in terms of water quality concerns. Pollman also utilized DER data taken from a source known as Storette, and this pertains to the 21 sampling stations involved in the preparation of JSI Exhibit 17, the graphing document related to concentrations of various metals. Again, this was in furtherance of the basic underlying opinion which Pollman had about the project. The Storette data as such was not offered into evidence. Witnesses for the Petitioner, namely Olson and White, were aware of the two reports of Technical Services, Inc. and the use of the DER Storette data and offered their criticism of the project taking into account this information. Petitioner points out that there is no indication as to how far below the sediment/water interface the Technical Services, Inc., and DER sediment samples related to reports of the consultant and the Storette information of DER were extracted. Therefore, it only reflected one portion of the sediment at a depth of extraction. A more complete understanding of the sediment characteristics would have been shown through a core sample, especially in the area to be dredged, but that understanding was not essential. The suggestion by the Petitioner that it was inappropriate to normalize data for purposes of describing the relative concentrations of the metals parameters is not accepted. The preparation of JSI's Exhibit 17 does not point to abnormally high amounts of aluminum, such that the use of aluminum as a known commodity in carrying out the normalization would be contraindicated. As identified by the petitioner in its proposal, sediment sizes within the strata found in the basin depicts higher percentage of silt and clay-size sediments in the back end of the basin with lesser amounts of the silt- and clay-size sediments in the southern reach of the basin and at the intersection of the basin with the Intercoastal Waterway. The smaller the particles, such as silt and clay, will remain suspended for a longer period of time and have a tendency to promote bonding with heavy metal. Nonetheless, this information does not change the impression that the turbidity barriers will be effective. The 1983 Technical Services, Inc., information related to the settling of resuspended sediment and similar information imparted in the 1985 report by that organization tend to confirm that approximately two days should be necessary to allow the area of excavation to return to background conditions related to turbidity. This is in corroboration of remarks by Dr. Powell. These time projections are not found to be inadequate when taking into account other factors such as tidal changes, boat traffic, other activities within the basin, wind and weather events. As White described, the antifouling properties of the paint involved in the business activity of the applicant can be expected to adversely impact any larval forms of marine organisms when introduced into the basin. Nonetheless, this toxicity is not expected to pose a danger to marine organisms in the Intercoastal Waterway given the percentage of resuspended sediment that will escape capture by the sediment barriers and the dilution factor before introduction of those resuspended sediments into the Intercoastal Waterway. Petitioner questions the acceptability of evidence of the findings set forth by E G & G Bionomics, a firm which performed an examination to determine existing diversity of benthic macroinvertebrates. Those results are reported in Petitioner's Exhibit 13, a 1980 report. They were not accepted as evidence of the specific findings within that report in that they were not the subject of discussion by persons who authored that report. The use was limited to corroboration of the opinion by Dr. Pollman and Schulze as to water quality considerations and they were not Crucial to their opinions. Moreover, it was not necessary for the applicant to perform a more recent bioassay in order to give reasonable assurance to DER concerning water quality matters or to establish the implications of the influence of contaminants within the sediment found in the basin related to benthic macroinvertebrates. The biological integrity of the basin area was at risk prior to the proposal for maintenance dredging. The relevant inquiry is the influence of the dredging activities on the biological integrity in the Intercoastal Waterway and those activities do not place organisms within the Intercoastal Waterway in peril. Any synergistic aspects of metals which act as toxins, for example, the increase in the aggregate value of the toxicity of zinc and cadmium, compared to their individual implications as toxins, will not present problems with water quality in the Intercoastal Waterway. Petitioner takes issue with the proposed disposition of the dredge material at an ocean site. While an appropriate upland disposal site would be preferred, it is not mandated. The approved EPA disposal site within federal jurisdiction is acceptable. Petitioner in its fact proposals found at paragraphs 36-39 (incorporated by this reference) points out violations of water quality standards for cadmium, mercury, and aluminum, and other possible violations of the standard for mercury. This information does not cause a change of opinion about the acceptability of the project in terms of reasonable assurances. There is no indication that oils and greases will present a problem related to water quality standards. The project is not contrary to public interest in that: (a) the project will not adversely affect the public health, safety, welfare or the property of others; (b) the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat; (c) the project will not adversely affect navigation or the flow of water or cause harmful erosion of shoaling; (d) the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; (e) the project will be of a temporary nature; (f) the project will not adversely affect significant historical and archaeological resources under the provisions of s. 267.061; (g) the project is in no other way contrary to the public interest. The purpose of this fact finding does not include the issue of whether there are ongoing violations of state water quality standards associated with the business activity of the applicant, that not being the subject of the hearing. In any event, the testimony of Dr. Pollman established that the operations of JSI are not causing water quality problems associated with the parameters of cadmium, copper, aluminum, mercury, lead, chromium, tin, zinc or iron related to the Intercoastal Waterway. The influences of the business activities associated with those parameters within the basin are not understood when the evidence presented is examined but are not found to be essential to the resolution of this dispute.
Recommendation Having considered the facts, and the conclusions of law, it is, RECOMMENDED: That DER issue a final order which grants the requested maintenance dredging permit in keeping with the safeguards described in the fact finding of this recommended order. DONE AND ORDERED this 16th day of October 1986 at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0365 Having examined the proposed facts submitted by the parties, those proposals have been found as fact with the exception of the following which are distinguished: Petitioner's facts Paragraph 1: Subordinate to fact finding. Paragraph 2: The first sentence in this paragraph is rejected because the fact is not found within the indicated exhibits, nor can that fact be fairly inferred. Paragraphs 9, 10, 11, 14, and 15: Except for the last sentence in that latter paragraph are subordinate to facts found. Paragraph 15: The last sentence: Contrary to facts found. Paragraph 18: The last sentence: Subordinate to fact finding. Paragraphs 21, 22, 23, 24, 25 and 26: Subordinate to fact finding. Paragraph 27: Contrary to facts found. Paragraphs 28, 29, 30 and 31: Subordinate to fact finding. Paragraph 32: Not necessary to dispute resolution. Paragraphs 33 and 34: Subordinate to fact finding. Paragraph 35: Contrary to facts found. Paragraphs 40, 41 and 42: Subordinate to fact finding. Paragraphs 44, 45: Not necessary to dispute resolution. Paragraph 47: The first two sentences are information that is not sufficiently credible to allow application to the issues of the present case. Paragraphs 48, 49, 50 and 51: Not necessary to dispute resolution. Paragraph 52: Reject as fact. Paragraph 54: Contrary to facts found. Paragraph 55: Not necessary to dispute resolution. JSI and DER facts Paragraph 2: Pertaining to sentence 8 and the last phrase within sentence 11; Not necessary to dispute resolution. Paragraph 3: As to the first sentence, fourth sentence and seventh sentence; Not necessary to fact resolution. Paragraphs 4, 5 and 6 to the colon in paragraph 6: Not necessary to dispute resolution. The remaining portions of paragraph 6 are subordinate to fact finding. Paragraph 10: as to the last two sentences; Not necessary to dispute resolution. Paragraph 13: As to the next to the last sentence; Not necessary to dispute resolution. Paragraph 14: As to the fourth sentence and the last sentence; Not necessary to dispute resolution. Paragraphs 16, 17, 18 and 20: Subordinate to fact finding. Paragraph 21: Sentence 3 is subordinate to fact finding sentence 4 is not necessary to dispute resolution; sentences 5 and 6 are subordinate to fact finding. Paragraph 22: Next to the last sentence; Not necessary to dispute resolution. Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38 and 41: Subordinate to fact finding, except the comments in the last sentence of paragraph 41 related to the operations of JSI causing or contributing elevated concentrations of parameters within the basin which is not found as fact. Paragraphs 42, 43 and 44: Subordinate to fact finding. COPIES FURNISHED: Kenneth G. Oertel, Esquire Chris Bryant, Esquire OERTEL AND HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Thomas M. Baumer, Esquire Deborah Barton, Esq. GALLAGHER, BAUMER, MIKALS, BRADFORD, CANNON AND WALTER, P.A. 252-5 Independent Square Jacksonville, Florida 32202 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue In their Prehearing Stipulation, the parties described the nature of the controversy as follows: This matter involves a challenge to a Technical Staff Report and Recommendation made by Respon- dent's staff on a consumptive use permit applica- tion for water submitted to Respondent by Petitioner. Petitioner owns a recreational facility where water is being used. The Staff Report recommends that certain conditions be imposed upon the permit proposed to be issued to Petitioner placing limitations on the amount of water which may be consumed by Petitioner and requiring Petitioner to report on numbers of persons utilizing Respondent's facility. In that same stipulation, the parties described their respective positions as follows: Petitioner's Position: The present use of water at the Wekiva Falls Resort is a reasonable beneficial use which should not be reduced or limited by permit conditions. The standpipes through which the water flows are not wells and therefore should not be subject to any regulation by Respondent. The placement of the standpipes did not increase the flow of water but rather captured the already existing flow from natural springs which existed on the property prior to the placement of the standpipes. Petitioner feels his use does not come within the permitting power of Respondent, and that if it does, its use should be allowed to continue without any reductions in flow. Respondent's Position: After review of Petitioner's consumptive use permit application for the use of water emanating from two standpipes, one twenty-four (24) inches in diameter and the other fourteen inches in diameter, the staff of the District determined that the standpipes were wells subject to the District's regulation under Chapter 40C-2, Florida Administrative Code, and recommended approval of the permit with certain conditions requiring a reduction in flow during certain low or non-use periods. This matter arose from Petitioner's application to the District for a consumptive use permit that would allocate water to the Petitioner from water flowing from a 24-inch metal pipe and a 14-inch metal pipe for use at Petitioner's campground. The District maintains that, not only is the water that is drawn from the metal pipes and used at the campground regulated pursuant to Part II of Chapter 373, Florida Statutes, but also that the remaining water that flows from the two metal pipes and is used by Petitioner to maintain a swimming area is regulated pursuant to Part II of Chapter 373, Florida Statutes. The Petitioner has not applied for an allocation of water for maintaining the swimming area. Even though the Petitioner has not applied for such an allocation, the use of water for maintaining the swimming area has been evaluated because the Petitioner maintained that, even if the water used to maintain the swimming area is regulated pursuant to Part II of Chapter 373, Florida Statutes, the flow of water from the metal pipes should not be restricted in any fashion from the ongoing flow. Thus, the issues presented are whether the application that was applied for should be granted, whether the Petitioner has to apply for an additional allocation in order to continue using water to maintain the swimming area, and what, if an additional allocation is sought, the permit would be. In their Prehearing Stipulation the parties also agreed to the following issues of law. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding subject to Section 120.57(1), Florida Statutes. To the extent the standpipes located on Petitioner's property are determined to be wells, they are governed by and subject to the provisions of Chapter 373, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The procedural rules which apply to this proceeding are Chapters 40C-1, 28-5, and 22-I, Florida Administrative Code. The parties also agreed to the following as being the ultimate issues of fact which remained to be litigated. Whether the two standpipes constitute an excavation that was drilled, cored, washed, driven, dug, jetted, or otherwise constructed with the intended use of such excavation to be for the location, acquisition, development, or artificial recharge of water. Whether the continued use by Petitioner of water at pre-permit levels is a use of water in a quantity necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest. Whether the continued use of water by Petitioner at pre-permit levels would increase the danger of saline water encroachment. Whether a reduction in flow of water will result in a reduction in water quality for the uses made of the water by Petitioner. Whether a reduction in flow of water would have adverse impacts on the quality of water in the Wekiva River. Subsequent to the hearing, a transcript of the proceedings at hearing was filed on December 22, 1986, and, pursuant to request of the parties, they were allowed 30 days from that date within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The proposed recommended orders have been carefully considered and a specific ruling on each proposed finding of fact submitted by each party is contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings based on admissions in prehearing stipulation Petitioner is a private individual who owns and does business as the Wekiva Falls Resort in Lake County, Florida. Respondent, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373.219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. The District has assigned Petitioner's permit application, which is the subject of this proceeding, the permit number 2-069-0785AUS. On September 4, 1985, Petitioner submitted to Respondent a CUP application number 2-069-0785AUS to withdraw water from two wells, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. The water which flows from the two standpipes flows through a creek which was improved by Petitioner, said creek having as its terminus the Wekiva River. The standpipes were put in place by Petitioner or his authorized agents or employees in 1972. The area of the Wekiva River into which the creek leading from the two standpipes flows has been designated as an aquatic preserve and an "Outstanding Florida Water." On May 23, 1986, Respondent's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application number 2-069- 0785AUS. Petitioner's Petition for Administrative Hearing was timely filed with the District. Findings based on evidence at hearing Petitioner filed his CUP application on September 4, 1985, one week in advance of the September 11, 1985, deadline for existing users of water to file applications which would establish and protect their existing user status. Petitioner's application requests an allocation of 31.7 million gallons per year (mgy) for the following uses: 8 per cent for cooling and air conditioning, 3 per cent for outside use, and 89 per cent for commercial and industrial use. Petitioner has made no application for any allocation of water for water based recreation. The Wekiva Falls Resort property consists of approximately 140 acres stretching 4800 feet in length between Wekiva River Road and the Wekiva River. The property is located along the Wekiva River between State Road 46 and the Orange County, Florida, line. Seminole County, Florida, is on the opposite side of the Wekiva River from the subject property. Petitioner purchased the subject property in 1968. At that time it was a heavily overgrown rural tract. Petitioner observed a stream which came under Wekiva River Road, passing through seven culverts, and running the length of the property to the Wekiva River. This stream carries runoff from Petitioner's property as well as runoff from areas west of the property on the opposite side of Wekiva River Road. At a point approximately midway between the Wekiva River and Wekiva River Road, along the stream, a depressional area was located by Petitioner, through which the stream flowed. Petitioner observed that more water was flowing downstream from the depressional area than upstream. Petitioner's property is located in an area of natural artesian flow where springs or seeps are not uncommon. Because the area in which the subject property is located is one of natural artestian flow, it is likely that a surficial seep of water existed in the depressional area which generated a flow of water. None of the available geological or hydrogeological information or data would indicate the existence of a spring or springs on this site prior to the drilling undertaken by Petitioner. At the time the first well was drilled by Dick Joyce Well Drilling, Inc., no spring was observed by the driller. Further, in conversations with the Executive Director of the District in 1974, no mention was made by the Petitioner of the existence of a spring or springs at the site prior to drilling. On July 17, 1969, Petitioner measured the stream flow and calculated same to be 23.97 cubic feet per second. The methodology utilized by Petitioner in measuring the stream flow in its natural state was an accepted methodology. However, this measurement did not discriminate between the water flowing into the depressional area from the stream carrying runoff from the lands upstream of the depressional area and the water originating from surficial seeps in the depressional area. Thus, this amount cannot be utilized or relied upon as a measurement of the amount of water emanating from seeps in the depressional area before drilling was undertaken by Petitioner. Nevertheless, other evidence indicates that the total volume of water flowing from Petitioner's property into the Wekiva River was probably substantially the same both before and after the installation of the two wells on Petitioner's property. In any event, the installation of Petitioner's wells does not appear to have increased the flow of the Wekiva River downstream of where Wekiva Canoe Creek discharges. In undertaking the development of his property as a resort/campground/recreational vehicle facility, Petitioner dug out the depressional area and used a dragline to open up the creek from the depressional area downstream to the Wekiva River. At a point approximately 200 feet west of the Wekiva River, Petitioner dredged a wide area to construct a marina with access through the creek to the Wekiva River. In an effort to obtain a controlled flow of water, Petitioner contracted Dick Joyce of Dick Joyce Well Drilling Inc. to drill a well fourteen inches in diameter at a site along the bank of the depressional area designated by Petitioner. The well was drilled by Joyce in August of 1972. The well was drilled using a cable rig to a depth of 107 feet, with casing being driven to a depth of 58 feet. The drilling procedure excavated a hole in the ground, penetrated rock, and resulted in the flow of ground water to land surface. The top of the 14-inch well extends 4 to 5 feet above land surface. In a further effort to obtain a controlled flow of water, Petitioner subsequently contracted Central Florida Drillers to drill a second well, twenty- four (24) inches in diameter. This well was drilled in 1973 along the bank of the depressional area, at a spot identified by Petitioner, in the same general vicinity as the previously drilled 14-inch well. The well was also drilled using a cable rig to a depth of 120 feet with casing being driven to a depth of 84.7 feet. The drilling procedure excavated a hole in the ground, penetrated rock, and resulted in the flow of ground water to land surface. The top of the 24-inch well extends 5 feet above land surface. Central Florida Well Drillers Inc. prepared and maintained a driller's log of the 24-inch well, recording the composition of the stratigraphic column through which the drilling equipment passed. The lithology shown in the stratigraphic column is indicative of the geology normally found in a well drilled in this geographical area. The log shows penetration of the normal stratigraphic column for this area and does not show a spring bore that had been filed in by materials at an earlier date. The drilling of the two wells by Petitioner substantially altered the natural conditions on the property as they existed prior to 1972. The top of the Floridan aquifer in the geographical region in which Petitioner's wells are located is encountered at depths ranging from 50 to 100 feet below land surface. The amount of water flowing from the wells has been variously reported and calculated since the wells were installed. Petitioner's promotional materials, which bill the resort as home of the "world's largest flowing well," asserts the maximum free flow capacity to be 72 million gallons per day (mgd). At another point in time, flow from the larger well was said to be 28.8 mgd and the flow from the smaller well 11.5 mgd. Respondent's staff, in preparing its technical staff report, calculated the total flowage from the two wells to be 18 mgd. In his application for a permit to operate a public bathing facility filed with the Florida Department of Health and Rehabilitative Services (HRS), Petitioner indicated the total flowage to be 16 mgd. For purposes of the determination to be made by this Order, the parties stipulated at the hearing to a total flowage figure of 12.47 mgd. Petitioner has operated and continues to operate the facility as a campground and water based recreational site. The central theme of the use of Petitioner's property is the recreational use of water. The water based recreation includes swimming, boating, tubing, and fishing, and is centered around the two flowing wells. The designated swimming area extends from a retaining wall located just west of the westernmost of the two wells to a footbridge which crosses Canoe Creek west of the Marina. The supply of water for recreational use comes primarily from the two wells. The stream which originally existed on the property and which carries runoff from the more western part of Petitioner's property and from off-site enters the designated swimming area at the retaining wall on its westernmost edge. The water which comes from this stream and which is introduced into the western end of the swimming area contains high levels of bacteria and coliforms. Between the hours of 6:00 a.m. and 6:00 p.m., Petitioner operates a sump pump which redirects this high coliform water eastward around a major portion of the swimming area to a point still within the swimming area. For the remaining twelve hours per day, this high bacteria, high coliform water is allowed to flow directly into the swimming area. Petitioner could reduce the level of bacteria and coliforms in the swimming area by simply operating the sump pump for 24 hours a day and/or introducing the water so pumped back into Canoe Creek at a point further downstream east of the designated swimming area. In addition, runoff from a storm drain which was constructed by Lake County, Florida, as a result of an easement granted to them by Petitioner, enters Canoe Creek at a point downstream from the wells but east of the footbridge, within the designated swimming area. When stormwater is conveyed through this storm drain, it also introduces coliforms into the swimming area at the point where the storm drain intersects Canoe Creek. The gate valves on each of the two wells are frozen in a completely open position. The wells are presently flowing at maximum capacity 24 hours a day without regard to whether the facility is being used or not. Petitioner does not presently have the capability to incrementally control the flow of water, short of utilizing a plug to completely shut off the flow of water from one or the other or both of the two wells. Petitioner does, however, have the capability of installing a hydraulic cylinder remote control system in the wells which would allow him to control the flow of water incrementally from the wells via a phone line. The use of Petitioner's facility varies by season, month, day of the week, and time of day, and according to weather conditions on a particular day. Although Petitioner did not have records available showing the number of persons utilizing a particular part of the facility for a particular purpose on a particular day, most of Petitioner's revenue, at least during the summer months, is generated by day use swimmers and picnickers. The swimming facility is most heavily used during daylight hours in the summer months. More customers use the swimming facilities on Saturday and Sunday than during the weekdays. Use is lower during the winter months and during times of inclement weather such as cloudy or rainy days. The evidence fails to show the average number of bathers who use Petitioner's facilities at any particular season or during any particular weather conditions. Petitioner holds a Swimming Pool-Bathing Place Operating Permit for the swimming area issued by the Florida Department of Health and Rehabilitative Services pursuant to Section 10D-5.120, Florida Administrative Code. Responsibility for enforcement of these administrative regulations is with the Lake County, Florida, Public Health Unit. Petitioner's permit allows him to have a maximum swimming pool population of 2000 bathers per day, but there is no evidence that he has ever had that many bathers on a single day since he received the permit. There are two primary water quality parameters which Petitioner is required to maintain within the swimming area, which are delineated in Rule 10D- 5.120, Florida Administrative Code. The first is a flow-through requirement of 500 gallons of water per anticipated bather per 24 hours. On a day when the swimming facility is being utilized by the maximum number of bathers allowable, 2000, the flow requirement for that day would then be one million gallons. For any day when the bathing population fell below 2000, the gallon flow-through requirement would be proportionately reduced. The second water quality parameter Petitioner is required to maintain relates to coliform densities. High coliform count can result in serious illness. The coliform density in the swimming area must not exceed 1000 most probable number of coliform organisms per 100 milliliters. Coliform levels in the swimming area at any given time are dependent upon several variable factors. Among these factors is the number of coliforms being introduced into the swimming area. As has previously been discussed, when the sump pump which reroutes high coliform water around the upper part of the swimming area is not operating, the number of coliforms would increase. Also during periods of rainfall, coliforms are washed into the swimming area in runoff which enters from overland and through the storm drain which enters the lower part of the swimming area. Temperature is a variable factor which affects coliform levels. As temperatures increase, bacteria multiply more rapidly, and thus coliform levels increase. The number of human beings utilizing the water at a given time impacts coliform levels in that, since humans are producers of coliforms, when greater numbers of humans are in the water, higher coliform levels would normally result. These factors coalesce in that high temperatures normally occur during the summer months which contain the days of most intense usage, and thus high coliform levels would be expected during these times if all other factors remain constant. Conversely, during the winter months, when facility usage is lowest and temperatures are lowest, lower coliform levels would be expected. One additional variable factor which affects coliform levels is the amount of water flowing through the swimming area. Water dilutes any contaminants or pollutants that come into the system. Petitioner attempted to show a correlation between rate of flow and coliform levels in excess of 1000 parts per 100 milliliters (ppm). (Petitioner's Exhibit #1) However, because the date collected did not control for and did not take into account the presence or non-presence of the variable factors which affect coliform levels, no conclusions could be reached regarding whether water quality could be maintained in the swimming area in accordance with HRS standards, with periodic adjustments to flow from the wells. No competent substantial evidence was offered to show that periodic adjustments to flow would prevent Petitioner from meeting HRS standards for water quality and therefore prevent Petitioner's continuing the operation of his public bathing facility. The original permit application filed by Petitioner only requested an allocation of 31.7 million gallons per year (mgy), this amount being only the water utilized for the campground. The construction of Petitioner's potable water supply for the campground was approved by the Florida Department of Environmental Regulation and meets all water quality standards applicable to the campground. Although the water used for the campground comes from a pipe connected to the 24-inch well, this request for water is not related to and does not account for the water which flows from the wells into the swimming area and out through Canoe Creek and is used for recreational purposes. The technical staff report (TSR) prepared by Respondent's staff recommends granting an allocation of 31.7 mgy of water to Petitioner for commercial and household uses (to supply the campground) and an allocation of 2.55 billion gallons per year (bgy) of water for recreational uses. The recommended allocation for recreational use breaks down to an average daily use of 7 million gallons per day (mgd), representing a 44 per cent reduction in the amount of water presently flowing from the wells for recreational purposes. The TSR further recommends a maximum daily use for any one day of the year of 18 million gallons of water. This recommendation actually exceeds the present production capacity of the wells. The TSR further recommends that the overall 44 per cent reduction in use of water for recreational purposes be achieved by adjustment of well discharges during non-use periods each day and seasonal non-use periods when bathing and marina use are minimal. This would require installation of operable valves on each of the wells as is also recommended in the TSR. Subject to the limitation imposed by the annual allocation and subject to the maximum daily allocation, Petitioner would make the flow adjustments as conditions warrant and as he sees fit. The Floridan aquifer in the region surrounding Petitioner's property is not expansive; thus there is a maximum amount of water which can be stored within it. Water will tend to discharge at some point within the system when flow is stopped at another point. The drawdown effect on the potentiometric head caused by the 24-inch well after flowing for a period of twenty-four hours can be calculated to extend up to two miles west of that well and further to the east. The excess water flowing through Petitioner's wells, over and above that required for recreational purposes, could be tapped and used by other potential consumers of water within the same vicinity, if Petitioner reduced the flow from his wells. Underlying the Floridan aquifer in the Wekiva River Basin Area is a layer of saline water, the degree of salinity being measured by the chloride concentrations in said water. This underlying saline water is relic sea water and is not salt water being pulled in from the oceans. When water is discharged from the Floridan aquifer and potentiometric pressures are thereby reduced, saline water is allowed to move upward and closer to the Floridan aquifer, resulting in higher chloride concentrations in the water discharged from the Floridan aquifer. The converse is also true. Reductions in discharge tend to increase potentiometric pressures which, in turn, would push the saline water further away from the Floridan aquifer. Chloride concentrations are the basic measurement of water quality. In measuring chloride concentrations in water, 250 milligrams of chloride per liter of water is the significant figure because this measuring point is the highest concentration of chloride that is recommended for public drinking water supplies. Data has been collected regarding chloride concentrations in water taken from the Floridan aquifer beneath the Wekiva River basin and shows significant changes during the period from 1973 to 1986. In a United States Geological Survey (USGS) study of water quality in the Floridan aquifer beneath the Wekiva River basin, conducted in 1973-74, an area or isochlor of water with chloride concentrations exceeding 250 (ppm) was identified. Petitioner's wells were included in this study, and the chloride level in his wells was measured at 230 ppm. The isochlor depicting water with chloride concentrations exceeding 250 ppm extended southward to a point north of Petitioner's property. A follow-up study begun in 1986 shows that the area or isochlor of water with chloride concentrations exceeding 250 ppm has extended itself, moving southward to include and pass the Petitioner's wells, past the Lake County border line which lies to the south of Petitioner's property and into Orange County, Florida. In 1986 Petitioner's wells produced water which measured 296 ppm and 312 ppm respectively. Because the 1986 study was not complete as of the time of hearing, no clear determinations can be made as to the extent to which the Petitioner's wells have contributed to the southward migration of the 250 mg/1 of chloride base line. At a minimum, the withdrawals of water from Petitioner's wells is having a localized impact in the immediate vicinity of those wells. Reduction of the flows from Petitioner's wells would, at a minimum, result in an improvement in the chloride levels in a localized area. That improvement in conjunction with similar improvements at other wells in the area could ultimately result in a more regional improvement of the chloride levels. Because of the factors observed indicating a deterioration of the aquifer systems in the face of increased demand, Respondent's staff has created Special Condition Zones in an effort to identify areas within the Wekiva River basin where hydrologic conditions warrant concern and special attention. Zone One, in which Petitioner's property is located, is the area of greatest concern because of observed changes within the hydrologic regime. Special permit conditions have been created for these zones to insure that no more water than is needed for a specific purpose is allocated to any user in the area. The flows from Petitioner's wells provide a benefit to the Wekiva River by diluting the pollutants which flow into the river. The cascading water from the standpipes aerates the water, which in turn increases the oxygen levels which is of benefit to the invertebrates, fish, and other animals that live in the water. The flows from Petitioner's wells account for approximately six or seven per cent of the flow of the Wekiva River at the gauging station at State Road 46. Nevertheless, no persuasive competent substantial evidence was offered to show that an overall 44 per cent reduction in flow from Petitioner's wells would in any significant way impact the quality of water in the Wekiva River. The District staff recommended that numerous "standard general conditions" and numerous "other conditions" which relate specifically to this project be incorporated in Petitioner's CUP permit. Those conditions are set forth at length in Respondent's Exhibit No. 6 and it would serve no useful purpose to repeat them all here.
