Findings Of Fact Background In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), an intervenor in this case, filed a petition toe initiate rulemaking for single source reclassification of groundwater under the existing provisions of Rule 17-3.403, Florida Administrative Code (F.A.C.). In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties classified Class G-I groundwater, and to thereby provide them the most stringent water quality protection accorded groundwaters of the state. At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed the Department of Environmental Regulation (Department) to review the existing G-I rule, prepare proposed revisions, and present its recommendations to the ERC. Following the ERC directive, the Department held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17- 4.245, F.A.C., at issue in these proceedings. On October 31, 1986, the Department duly noticed the proposed rules in volume 12, number 44, of the Florida Administrative Weekly. The notice interested parties that a public hearing would be held on December 16, 1986, before the ERC. 1/ On December 16-17, 1986, the ERC held a public hearing at which time it considered the rules recommended by the Department. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in volume 13, number 3, of the Florida Administrative Weekly on January 16, 1987. Petitioners and Intervenors Petitioners, Adam Smith Enterprises, Inc., and Alliance for Rational Groundwater Rules (Case No. 86-4492RP), and Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86- 4705R), filed timely petitions to challenge the validity of the proposed rules, which petitions were consolidated for hearing. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Council, Inc.; and Pasco County. These Intervenors' interests were aligned with those of petitioners. Petitions for leave to intervene were a1so granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens of Citrus County, Inc. These Intervenors' interests were aligned with those of the Department and the ERC. Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), is the owner/developer of a 3,800-acre development of regional impact (DRI) to be known as Trinity Communities. This development, which has been in the acquisition and planning stages for almost 5 years, is currently undergoing DRI review and Adam Smith anticipates that it will receive its development order by September 1987. The Trinity Communities development is located predominately in Pasco County, with just over 250 acres of its lands located in Pinellas County. These properties are predominately open pasture land, and are bordered on the north, east and west by roads and on the south by Hillsborough and Pinellas Counties. As proposed, the Trinity Communities development will include 1100 acres of parks, golf courses, and other open areas. The remaining lands will be developed to accommodate 9500 dwelling units, as well as industrial and commercial uses to service the community, over a 20-year period. At today's market value, the property represents an investment of approximately 28 million dollars. Abutting the Trinity Communities development is the Eldridge-Wilde Well Field. This well field is covered by consumptive use permits issued by the Southwest Florida Water Management District (SWFWMD), and contains major public community drinking water supply wells as defined by the rules at issue in this proceeding. Of these wells, 5 are located within 9.63 feet and 181.5 feet of the proposed development's property line, and 5 are located with 204.72 fee and 297.5 feet of its property line. Petitioner, Alliance for Rational Groundwater Rules (Alliance), is an association of landowners who united to educate themselves about the proposed rules. The proof failed, however, to establish whether Alliance had ever elected any officers or directors, or the magnitude of its membership. Consequently, the proof failed to establish that a substantial number of its members, although not necessarily a majority, were substantially affected by the proposed rules, and that the relief requested by it was of a type appropriate for it to receive on behalf of its members. Petitioner, Aloha Utilities, Inc. (Aloha Utilities), is a utility certified by the Florida Public Service Commission to provide water and sewer service to two separate service areas in southern Pasco County. Currently, Aloha Utilities operates an 850,000 gallon per day (gpd) sewage treatment facility (Aloha Gardens) and a 1.2 million gpd sewage treatment plant (Seven Springs). It also operates 10-11 producing wells, at least 7 of which are permitted by SWFWMD to withdraw at least 100,000 gpd. One of these wells is located approximately 1/4-1/2 mile from an Aloha Utility sewage treatment plant. At least 3 of Aloha Utilities' wells which are permitted to withdraw 100,000 gpd or more, will service or are servicing the Riverside projects and Aloha Gardens Unit Number 12 project discussed infra. Consequently, the proof establishes that Aloha Utilities operates a major public community drinking water supply system as defined by the subject rules. The Aloha Gardens facility is under a Department order to expand its effluent disposal capacity. To satisfy the Department's order and the need for increased disposal capacity, Aloha Utilities commenced condemnation proceedings 8-12 months ago to secure the needed property. While the condemnation proceeding is not yet completed, Aloha Utilities has already expended considerable sums for engineering studies and attorney's fees in its efforts to acquire the property. That property is located approximately 1/2 mile from an existing well that is permitted for an average daily flow of at least 100,000 gpd. The effluent disposal capacity of the Seven Springs facility is also being expanded to meet existing and future demand. In April 1987, Aloha Utilities acquired a 27-28 acre parcel of land immediately adjacent to its existing facility. Upon these lands, Aloha Utilities proposes to construct percolation ponds, a rapid rate land application effluent disposal process. As sited, these ponds would be located 1/2 to 3/4 of a mile from a well permitted for an average daily flow of 100,000 gallons or more. 2/ Petitioners, Interphase, Inc., Phase 1 Homes, Inc., and Tahitian Development, Inc., are corporations with common management which are developing three separate but geographically proximate projects in Pasco County. These projects will be, or are, serviced by Aloha Utilities. Interphase, Inc., is the owner/developer of a 100- acre tract known as Riverside Village Unit Number Four. This property is currently being developed to include 57 acres dedicated to single family use and 43 acres dedicated to multifamily use, and will require the installation of stormwater facilities and underground sewage transportation facilities. Two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more are located 1/2 mile and 1/3 mile, respectively, from this development. Interphase, Inc., is also the owner of a 17-acre parcel of vacant land in Pasco County that is zoned commercial. This property is located within 400 feet of Aloha Utilities' Seven Springs sewer treatment plant, and its development will require the installation of underground sewage transportation facilities. Phase 1 Homes, Inc., is the owner/developer of a project known as Riverside Village Townhouses. This project is fully developed and is currently serviced by Aloha Utilities. Located within 1/2 mile of the development are two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development, Inc., is the owner/developer of a 40-acre tract known as Riverside Villas. Twenty of these acres have been developed and some of the units sold. The remaining 20 acres are currently under development. In developing its remaining 20 acres, Tahitian Development would be required to install stormwater drainage systems and sewage transportation lines to connect with Aloha Utilities. Located within 1/2 mile of the development are wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development also owns a 40-acre parcel in Orange County which it plans to develop for light industrial uses such as an industrial park or an office complex. Such development would result in at least a 40 percent impervious surface, including building tops, within that 40-acre parcel, and require the installation of a sewage transportation system and a stormwater drainage system. Petitioner, A.C. & R., Inc., is the owner/developer of a project in Pasco County known as Aloha Gardens Unit Number 12. The project, which currently is represented by 40-50 developed lots, is located just north of the Aloha Gardens sewage treatment facility, and is serviced by Aloha Utilities. Located within 1/2 mile of the development that is permitted for an average daily flow of 100,000 gallons or more. Petitioner, Great Cypress Mobile Village, Inc., is the owner/developer of a 149 unit mobile home park in Pasco County. Twenty of these units are completed and ready for occupancy. Completion of the project will require the installation of additional sewer lines. Located at the interior of the property is a sewage treatment plant owned by Northern Utilities which services the project, and within 600 feet of the project's boundary there is a well which services that utility. The capacity of that well was not, however, demonstrated in these proceedings, nor was it shown whether such well was part of a community water system. Petitioner, Barrington, Ltd. is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rules. Intervenor, Florida Electric Power Coordinating Group, Inc. (FCG), a Florida corporation, is an association of Florida's electric utilities, and is composed of 37 members. The FCG has, as part of its internal organization, an environmental committee whose purpose is to participate in regulatory development and provide mutual member assistance with regard to water related matters. This committee was authorized by the FCG executive committee to participate in the development of the rules at issue in these proceedings, as well as Intervene in these proceedings, to represent and protect the interests of FCG members. The FCG participated in the development of the subject rules by the Department, and was granted full party status by the ERC during that rulemaking process. The members of FCG are owners and operators of electric power generating facilities. These facilities“ include the power plant and ancillary facilities such as substations. Incident to the operation of these facilities are wastewater discharges associated with the production of electricity and stormwater discharges. One of these facilities, Gainesville Regional Utilities' Deer Haven generating station is located across Highway 441 from a major community drinking water supply well. Intervenor, Florida Land Council, Inc., a Florid corporation, is composed of 12 primary members who own large tracts of land in interior Florida, and who are engaged primarily in agribusiness. The Land Council's purpose is to protect the asset value of its members property and, because of that purpose, it is concerned with environmental regulations, growth management regulations, land use regulations, and comprehensive planning. To protect its interests, the Land Council sought leave to intervene in these proceedings. There was, however, no proof that any lands owned by any member of the Land Council were proximate to any major public community drinking water well. Intervenor, Pasco County, is the owner/operator of 25 wastewater treatment plants with capacities In excess of 100,000 gallons per day, and has under construction, or in the design stage, additional facilities with capacities in excess of 100,000 gallons per day. The construction of these new facilities will require the installation of new lines for the collection of wastewater. Pasco County's current, as well as its planned, wastewater treatment facilities will utilities a rapid rate land application effluent disposal process. Within a mile of any wastewater treatment plan operated by Pasco County can be found a major public community drinking water well as defined by the rules at issue in these proceedings. Pasco County also owns and operates wells within the county with permitted withdrawal rates exceeding 100,000 gpd, and participates in the ownership and management of their wells with permitted withdrawal rates exceeding 100,000 gpd through West Coast Regional Water Supply Authority. Pasco County currently has plans to add new production wells in the county with an average daily pumpage in excess of 100,000 gallons per day. Intervenor, West Coast Regional Water Supply Authority (West Coast), is an interlocal government body created in 1974 to develop, store, and supply water to its member governments so that all citizens within the areas served by the authority may be assured an adequate supply of water. Member governments served by WCRWSA are Hillsborough County, Pasco County, and the cities of St. Petersburg and Tampa. Wellfields operated by West Coast are the Starkey Wellfield located in west central Pasco County, which serves the citizens of New Port Richey and Pasco County; the South-Central Hillsborough Regional Wellfield located in south-central Hillsborough County, which serves the citizens of Hillsborough, County; the crossbar Ranch Wellfield located in north-central Pasco County, which principally serves the citizens of Pinellas, County; the Cypress Creek Wellfild located in south-central Pasco County, which serves the citizens of Hillsborough, Pinellas, and western Pasco Counties and the City of St. Petersburg; the Northwest Hillsborough Wellfield located in northwest Hillsborough County, which serves the citizens of Hillsborough County; the Section 21 Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg; and, the Come-Odessa Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg. 3/ Each of the wellfields operated by West Coast are public community water systems, and contain wells permitted to withdraw in excess of 100,000 gallons per day. Collectively, these wellfields serve a total population of 800,000 persons. Intervenor, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), is a not-for-profit corporation, was chartered in 1981, and has 350 members who obtain their drinking water from operational community water supply wells permitted for over 100,000 gallons per day in Inverness, Crystal River, Floral City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus County, Florida. The purpose of Concerned Citizens is to protect the natural resources of Citrus County through planning and zoning regulations, and local and state legislation and regulations. It was granted party status by the ERC. General aspects of the proposed rules The proposed rules establish new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the existing rule, the ERC could reclassify an aquifer or portion of an aquifer as G-I within specified boundaries upon a finding that: The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and The designated use is attainable, upon consideration of environmental, techological, water quality, institutional, and social and economic factors. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was: ...within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifer... and, upon consideration of: ...environmental, technologial, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. As with thee existing rule, the proposed rules require that rulemaking procedures be followed to actually designate a G-I aquifer or aquifer segment at any particular location. The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells", community water systems that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater, by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology, of 5 years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharge to groundwater would be prohibited or restricted. A major emphasis of the proposed rules is to restrict discharges to groundwater within the zones of protection. For example, the rules eliminate the zone of discharge within the zones of protection, and require that new discharges to groundwater of treated domestic effluent meet the groundwater criteria specified in rule 17-3.404, F.A.C., prior to discharge. 4/ Additionally, such wastewater treatment facilities would be required to pre-treat industrial wastewater, provide daily monitoring to insure proper treatment plant process control, and provide 24 hour a day attendance of a wastewater operator under the general supervision of a Class A certified wastewater operator. New underground lines for the transport of domestic raw wastewater would be required to be constructed so that no more than 50 gallons per inch of pipe diameter per mile per day could leak into the ground. Within the 5 year zone of protection, there are no restrictions on stormwater discharges for residential developments. However, discharges from new stormwater facilities serving an area forty acres or larger with a forty percent impervious surface, excluding building tops, are required to monitor the discharge. Construction and operation of new sanitary landfills would be prohibited. As previously noted, to be eligible for reclassification as a G-I aquifer, the aquifer or aquifer segment under consideration must be leaky confined or unconfined. Whether the aquifer is leaky confined or not will be determined through application of the "Vv" and "Tv" formulae contained in the proposed rules, and the zones of protection will be established by reference to the "r" formula contained in the proposed rule. To date, neither the Department nor any party has applied the "Vv" and "Tv" formulae to identify wells hat are withdrawing from unconfined or leaky confined aquifers, nor has anyone delineated any zones of protection by application of the "r" formula. The Department has, however, identified those areas of the state at which it is likely that major community drinking water supply wells are withdrawing from such aquifers. Based on this identification, the Department has contracted with the U.S. Geological Survey (USGS) to "map" the Middle-Gulf region (Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by applying the "Vv" and "Tv" formulas to each well permitted to withdraw 100,000 gpd or more to determine if it is withdrawing from such aquifers and, if so, to delineate proposed zones of protection around such wells or wellfields through application of the "r" formula. The USGS is currently mapping the Middle-Gulf region. Pertinent to this case, the Department has identified all of Pasco and Pinellas Counties, the northern half of Hillsborough County, and most of Orange County including Orlando, as areas within which wells are most probably withdrawing from unconfined or leaky confined aquifers, and for which aquifers the Department will seek G-I reclassification. Under the circumstances, the parties have established, except as heretofore noted, that there is a reasonable likelihood that the proposed rules will substantially affect their interests. The rule challenge The gravamen of the protestant's challenge is that certain definitions and formulae continued within the proposed rule are vague, ambiguous, or not supported by fact or logic. The Protestants' also challenge the adequacy of the economic impact statement. The Protestants concerns are addressed below. Definitions Rule 17-3.021, as amended, would define "Confined Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as follows: (7) "Confined Aquifer" shall mean an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself. For the purpose of G-I, it shall mean an aquifer confined from above by a formation(s) which restricts the movement of groundwater vertically from the water table to the top of the confined aquifer for a period of more than five years * * * (16) "Leaky Confined Aquifer" shall mean, for the purposes of G-I, an aquifer confined from above by a formation(s) which allows groundwater to move vertically from the water table to the top of the leaky confined aquifer in five years or less. * * * (34) "Unconfined Aquifer" shall mean an aquifer other than a confined aquifer. For the purpose of G-I it shall mean an aquifer other than a confined or leaky confined aquifer. 5/ Protestants contend that the definition of "confined aquifer" and "leaky confined aquifer" are vague and meaningless because they are "defined by use of the phrase being defined". Accordingly, they conclude that proposed rule 17-3.021(7) and (16) must fall because they are without thought and reason, irrational and vague. Protestants further contend that since the definitions of "confined aquifer" and "leaky confined aquifer" are flawed, proposed rule 17-3.021(34), which defines unconfined aquifer, must also fall. The Protestants' contentions are not persuasive. If one were restricted to the definition of "confined", "leaky confined" and "unconfined" aquifer to glean their meaning, the rules might be considered vague. However, these definitions are, as they specifically provide, "for the purpose of G-I" and they must be read in context with the balance of the rule. When so read, it is apparent that "top of the confined aquifer" or "top of the leaky confined aquifer" is the top of the aquifer that has been calculated as confined or leaky through manipulation of the "Vv" and "Tv" formulae. Under the circumstances, the subject definitions are not vague, arbitrary or capricious. Proposed rule 17-3.021(20) provides: "New Discharge" shall mean, for the purpose of G-I, a discharge from a new installation; or a discharge from an existing permitted installation that has been altered, after the effective date of G-I reclassification, either chemically, biologically, or physically or that has a 211 22 different point of discharge, and which causes a significantly different impact on groundwater. Protestants contend that the definition of "new discharge" is vague, arbitrary and capricious because existing installations would be classified as new dischargers, and subject to the more stringent requirements of the proposed rules, whether the alteration of their discharge significantly improved or adversely affected groundwater. As proposed, the rule would so define new discharge, and it is not vague or ambiguous. The proof demonstrated, however, that the Department only proposed to define, as new dischargers, those existing installations whose altered discharge caused a significantly different negative impact on groundwater. The Department conceded this point, and offered no proof to demonstrate the reasonableness of classifying existing installations that improve their discharge as new discharges. Under the circumstances, proposed rule 17-3.021(20) is arbitrary and capricious. Proposed rule 17-3.021(35) defines "underground storage facility or underground transportation facility as follows: "Underground storage facility" or "underground transportation facility" shall mean that 10 percent or more of the facility is buried below the ground surface. This proposed rule is, however, only pertinent to proposed rule 17-4.245, which addresses the permitting and monitoring requirements for installations discharging to groundwater. Pertinent to this case, proposed rules 17-4.245(3)(c) and (d) establish construction requirements for the following facilities within the five year zone of protection: Underground storage facilities. An underground storage facility includes any enclosed structure, container, tank or other enclosed stationary devices used for storage or containment of pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Sect ion 403.031(1), F.S. Nothing in this paragraph is intended to include septic tanks, enclosed transformers or other similarly enclosed underground facilities.... Underground facilities for transportation of wastewater or pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Section 403.031(1), F.S. excluding natural and liquified petroleum gas. Underground facilities for transportation of waste effluent or pollutants or contaminants include piping, sewer lines, and ducts or other conveyances to transport pollutants as defined in Section 376.301(12), F.S., and contaminants as defined in Section 403.031(1), F.S.... Protestants contend that the proposed rules are contained in two separate chapters of the Florida Administrative Code with no bridge between them. Under such circumstances, they contend the rules fail to adequately define either facility in either chapter, and that the rules are therefore vague, arbitrary and capricious. Protestants' contention is not persuasive. Proposed rule 17-3.021(35) defines "underground storage facility" or "underground transportation facility" as meaning that 10 percent or more of the facility is buried below the ground surface. Proposed rules 17-4.245(3)(c) and (d) address what type of facility is included within the terms "underground storage facility" and "underground transportation facility." Notably, Rule 17-4.021, F.A.C., provides: Definitions contained in other chapters of the Department's rules may be utilized to clarify the meaning of terms used herein unless such terms are defined in Section 17-4.020, F.A.C., or transfer of such definition would defeat the purpose or alter the intended effect of the provisions of this chapter. Under the circumstances of this case, the rules are appropriately read together. So read, the construction requirements for "underground storage facilities" and "underground transportation facilities", as required by proposed rule 17-4.245(3)(c) and (d), are applicable if 10 percent or more of the containment device used for the storage or transport of pollutants is buried below the ground surface, and the proposed rules are not vague, arbitrary or capricious. Proposed rule 17-3.021(39) defines "Zones of Protection" as follows: "Zones of Protection" shall mean two concentric areas around a major public community drinking water supply well(s) or wellfield(s) drawing from a G-I aquifer whose boundaries are determined based on radii from the well or wellfields of 200 feet and five years groundwater travel time respectively. Protestants contend that the definition of "Zones of Protection" is vague, arbitrary and capricious because nowhere within the proposed rules is "G-I aquifer" defined. protestants' contention is not persuasive. Proposed rules 17-3.403(1) and (7) adequately explain what is meant by "G-I aquifer", and proposed rule 17-3.403(8) sets forth the metodology for calculating the zones of protection. The definition of "Zones of Protection", set forth in proposed rule 17-3.02(39) is not vague, arbitrary or capricious, because of any failure to define "G-I aquifer." Mapping Priorities When considering whether to reclassify an aquifer or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires that the aquifer or aquifer segment: Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones of protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. The mapping priority directive referred to in purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC that Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties, referred to as the Middle-Gulf region, be mapped first. That directive has not been reduced to writing and, consequently, a copy thereof has never been available for inspection. Categories of G-I Aquifers and determination of zones and protection Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed rule 17- 3.403 (7) provides: Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met: That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifers.... (b)(. reserved.) Proposed rule 17-3.403(8) provides: Determination of the boundaries of the zones of protection. (a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: percent.x4n where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. Protestants contend that the foregoing provisions of the proposed rules are vague, arbitrary and capricious because the wells that would be subject to and around which a zone of protection would be established cannot be identified or, if identifiable, do not comport with the Department's intent or interpretation. Protestant's concerns are not without merit. To be eligible for consideration as a G-I aquifer, proposed rule 17-3.403(7) requires that the aquifer segment be within the zones of protection of a "major public community drinking water supply well(s) or wellfield(s). Proposed rule 17- 3.021(17) provides that "major public community drinking water supply" shall mean: those community water systems as defined in Section 17-22.103(5), F.A.C., that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater. Community water system" is defined by Section 17-22.103(5) as: a public water system which serves at least IS service connections used by year- round residents or regularly serves at least 25 year-round residents. Facially then, the proposed G-I rules are applicable to "community water system" that hold a consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater", and which are withdrawing from unconfined or leaky confined aquifers. Notably, the rule does not ascribe the 100,000 gpd permitted rate of withdrawal to each well, but to a permit held by a community water system. Accordingly, under the literal reading of the proposed rules, each well covered by the consumptive use permit would be subject to a zone of protection regardless of its individually permitted rate, so long as it was withdrawing from an unconfined or leaky confined aquifer. While there may be legitimate reasons to designate zones of protection around wells, regardless of their individual permitted rate when the community water system holds a consumptive use permit to withdraw groundwater at a 100,000 gpd average, the Department advanced none. To the contrary, the Department contended that zones of protection were only to be established around a well that was permitted to withdraw an average daily amount of 100,000 gallons or greater. Under the circumstances, the provisions of proposed rules 17-3.403(7) and (8) are arbitrary and capricious. 6/ The "Vv" and "Tv" formulae Proposed rule 17-3.403(7)(a) prescribes the methodology where by vertical travel time will be calculated, and therefore whether a particular aquifer will be classified as confined or leaky confined. To this end, the proposed rule provides: ... Determination of vertical travel time for leaky confinement will be by application of the following formulae: Vv= Kv h/nl where: Vv= vertical velocity (feet/day). Kv= vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day). h= head difference between water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet). n = effective porosities of the surficial aquifer and underlying confining bed materials. 1 = distance from the water table to the top of the producing aquifer (feet). Tv= 1/Vv 365 where: Tv= vertical travel time (years). 1 = same as above. Vv= same as above. The "Vv" formula and the "Tv" formula are valid formulae, and are commonly used by hydrogeologists to calculate the vertical velocity and vertical travel time of groundwater. As proposed, the formulae present a reasonable methodology for computing the vertical velocity and vertical travel time of groundwater if the well is producing from one aquifer. The formulae cannot, however, as hereafter discussed, be reasonably applied if tee well is producing from multiple aquifers or if another aquifer intervenes between the surf aquifer and the producing aquifer. While not the most prevalent occurrence in the state wells in the Middle-Gulf regions often do penetrate more than one aquifer and do produce water from more than one aquifer. The rule defines the "Kv" element of the "Vv" formula as the "vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day)." This is a reasonable definition and will produce a scientifically valid result provided the well does not penetrate multiple aquifers. Should the well penetrate multiple aquifers, the values derived for vertical velocity ("Vv") and vertical travel time ("Tv") will not be accurate since the hydraulic conductivities of the intervening aquifers are not, by the rule definition, factored into the calculation of "Kv". Under such circumstances, whether an aquifer was classified as confined or leaky confined would not be determined by a valid "Kv" but, rather, by chance. Protestants also contend that the rule is vague, arbitrary and capricious because it does not specify the methodology by which "Kv" is to be calculated. There are, however, methodologies commonly accepted by hydrogeologists to derive a scientifically valid "Kv", whether the well penetrates one or more than one aquifer. The infirmity of the rule is not its failure to specify a methodology, but its to include data necessary to produce a meaningful result. The rule defines the "n" element of the Vv formula as "effective porosities of the surficial aquifer and underlying confining bed materials." This is a reasonable definition and will, though the application of commonly accepted methodologies, produce a scientifically valid result. 7/ The rule defines the element "Delta h" in the Vv formula as the "head difference between the water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet)", and defines the element "1" as the "distance from the water table to the top of the producing aquifer (feet)." These elements are utilized in the formula to calculate a gradient, and must be measured using the same points of reference to yield a meaningful result. To this end, the proof demonstrates that the definitions are reasonable since they utilize the same points of reference, and that when applied in accordance with accepted hydrogeologic practice will produce a scientifically valid gradient. (See Department exhibit 7). Protestants contend, however, that the definitions of "Delta h" and "1" are vague, arbitrary and capricious because they do not specify when the measurements should be made, do not define "producing aquifer", and do not define "top" of the producing aquifer. For the reasons that follow, Protestants' contentions are found to be without merit. While a water table is a dynamic surface subject to frequent, if not daily fluctuation, resulting from variations in rainfall and the demands of man, and while a potentiometric surface is likewise a dynamic elevation that changes with time and season, protestants failed to demonstrate that there was any particular date or dates that would be most appropriate to make such calculations. Rather, protestants contended that unless such measurements were taken contemporaneously, any derivation of "Delta h" and "1" would not be reliable. While such might be the case, the rule does not mandate a divergence from the accepted hydrogeologic practice of taking such measurements contemporaneously. While the rule does not define "producing aquifer," it is an accepted hydrogeologic term and not subject to confusion. The only confusion in this case was the introduction of the issue of multiple producing aquifers and protestants' contentions that this rendered the Vv formula vague, arbitrary and capricious since it did not factor in such a consideration. Protestants' contention does not, however render the term "producing aquifer" vague. The sole purpose of the Vv and Tv formulas are to determine whether the aquifer from which water is being produced is leaky confined. To establish this, the formulae are applied to calculate whether the vertical travel time is five years or less. If a well is withdrawing water from more than one aquifer it may be necessary to calculate Vv and Tv for each aquifer to discern which of those aquifers are within the 5 year vertical travel time threshold, and therefore subject to G-I reclassification. To this end the rule is not vague, and would adequately address the multiple producing aquifer scenario. While the rule doe not define "top" of the producing aquifer, this term is an accepted hydrogeologic term and is not subject to confusion. In application there may, however, be disagreements among hydrogeologists as to where this line should be established because geologic boundaries are fine gradations, and not sharp lines which would lend themselves to the designation of precise points of reference. This is not, however, a failure of the rule, but a peculiarity of nature, and is subject to scientific proof. Notably, protestants did not demonstrate that "top" of the producing aquifer could be defined with reference to a fixed point. Under the circumstances, "top" of the producing aquifer is a reasonable reference point. Zones of Protection Proposed rule 17-3.408 provides: Determination of the boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping), measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: QT 2 3.14 hn where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used: Floridan .05 Sand and Gravel .2 Biscayne .15 Surficial .2 The Department shall use more site-specific values for "Q", "n", or "h" when available for designation of the zones of protection by the Commission. Proposed rule 17-3.403(8)(a) provides that the inner zone of protection shall be based on a radius from the wellhead or wellfilled, as appropriate, of 200 feet. While denoted as an arbitrary radius, the 200 foot radius was not derived without fact or reason. Rather, it was a result reached at the workshops after consideration of existing regulations that establish buffer zones of 200-500 feet between a public water supply and a pollution source. Conceptually, the 200 foot zone was adopted because it is so small and so close to the well that it essentially constituted a zone of protection of the well head by preventing contaminants from moving into the well opening directly or the annular space around the well casing. Accordingly, the 200 foot zone has a reasonable basis. Its actual delineation is, however, as flawed as that of the five year zone discussed infra. The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The basis for the "r" formula is the formula used to calculate the volume of a cylinder. That formula, V = pi r2 h, yields a simple volumetric measurement without any consideration of velocity. By the introduction of the element "n" (effective porosity), the "r" formula introduces a velocity component which would, properly applied, produce a radius equal to the distance groundwater would flow in 5 years. 8/ As proposed, however, the rule would establish a meaningless line around a well. Under the proposed rule, the Department would calculate "r" based on specified effective porosities ("n") for the Floridan, Biscayne, sand and gravel, and surficial aquifers absent site specific data. The Department is, however, under no requirement to generate site specific data, and currently is mapping the Middle-Gulf region based on the values established by the rule. Absent chance, the areas mapped will bear no relationship to groundwater travel time. The lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. By assuming "n", the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. 9/ The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology. The element "Q" in the "r" formula is defined as the "permitted average daily flow from the well (measured in cubic feet per day)." Protestants contend that such definition is vague, arbitrary and capricious because the Department proposes to rely on consumptive use permits issued by the various water management districts to derive "Q", and such permits would not necessarily provide the requisite data. While the proof demonstrates that "Q" cannot always be derived by reference to a consumptive use permit, this does not render the definition of "Q" vague, arbitrary, or capricious. Rather, "Q" is a factual matter, and subject to a factual derivation through reference to consumptive use permits and other site specific data. The element "T" in the "r" formula is defined as "five years (1825) days." By its inclusion, the Department proposes to circumscribe the outer zone of protection at five years groundwater travel time. The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within an area proximate to a public water supply for public health and safety concerns. The five year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to groundwater a period of time should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply. The five years proposed by the rule was not, however, founded on fact or reason. During the workshops that under scored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took 10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and it discovery. Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five-year standard. Such standard was not the result of any study to assess its validity, and no data, reports or other research were utilized to derive it. In sum, the five- year standard was simply a "compromise", and was not supported by fact or reason. As previously noted, the lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. The effective porosity of those materials in the Floridan aquifer canvary from to .4 at various places. The rule proposes, however, to use an effective porosity for the Floridan aquifer of .05 to establish "r." The value ascribed to "n" is a critical value, as previously discussed in paragraph 65. It also has a profound impact on the aeral extent of the zone of protection. For example, assuming "Q" equals 3 million gallons and "h" equals 600 feet, an "n" of .02 would result in a radius of 4,406 feet or 1,400 acres, an "n" of .03 would result in a radius of 3,578 fee or 934 acres, an "n" of .05 would result in a radius of 2,787 feet or 560 acres, and an "n" of .2 would result in a radius of 1,393 feet or 140 acres. While an effective porosity of 05 for the Floridan aquifer may be a reasonable value at a particular site, it is not a value that can be reasonably ascribed to the Floridan in general. For this reason, and the reasons heretofore set forth, the rule's specification of an effective porosity of .05 for the Floridan aquifer is unreasonable. Proposed rule 17-3.403(8)(a), sets forth the manner in which the zones of protection will be drawn around a well or wellfield. That proposed rule provides: For well fields whose individual zones of protection overlap due to clustering, a single zone of protection will be calculated in the following manner: Using the permitted average daily withdrawal rate of the wells with overlapping zones of protection, the area on the surface overlying the aquifer equal to the sum of the areas of the five year zones of protection of the individual wells, shall be used to define the area which encircles the perimeter of the wellfield. In cases where a zone of protection of a single well protrudues beyond the calculated perimeter or when the configuration of the wellfield is irregular, the perimeter will be shaped to accommodate the configuration. The surface are encircling the perimeter of the wellfield shall not exceed the total surface area of the overlapping zones of protection for individual wells. In the case of unclustered wells within a wellfield, individual zones of protection around each well will be calculated. As previously discussed, the proposed G-I rules are facially applicable to "community water systems" that hold a " consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater," and which are withdrawing from unconfined or leaky confined aquifers. Under proposed rule 1773.403(8)(a), the five-year zone of protection would be drawn around each of these wells. If the wells are located so close to each other that the five year zones of protection are overlapping (clustered), those wells would be deemed a wellfield by rule definition and a five year zone of protection would be established around it. The proposed rule's description at how to determine and configure a zone of protection around a wellfield is however, vague and ambiguous. While the rule provides that when the configuration of the wellfield is "irregular", the perimeter will be shaped to accommodate the configuration", it sets forth no standard by which the perimeter will be established. Effectively, the rule vests unbridled discretion in the Department to establish the configuration of a wellfield. The Economic Impact Statements Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared economic impact statements for the proposed revisions to Chapters 17-3 and 17-4, Florida Administrative Code. The economic impact statements were prepared by Dr. Elizabeth Field, the Department's chief economist, an expert in economics. Dr. Field developed the economic impact statements by examining the proposed rules and discussing their potential impact with Department staff. Additionally, Dr. Field attended the public workshops that were held concerning the proposed rules, and solicited input from those participants. The Florida Home Builders Association and the Florida Petroleum Council submitted data for her consideration, but none of the petitioners, although some were represented at such workshops, responded to her requests for information. The economic impact statements prepared by Dr. Field to address the proposed rules conclude that, apart from the cost to the Department for mapping, there are no direct costs or economic benefits occasioned by the rules. Dr. Field's conclusion was premised on the fact that the proposed rules only establish the eligibility criteria for reclassification of an aquifer to G-I and the standards for discharge to that aquifer. Under the proposed rules, further rulemaking would be required to actually designate a specific aquifer as G-I, and delineate a zone of protection. 10/ Pertinent to this case, proposed rule 17-3.403, provides: The intent of establishing G-I eligibility criteria is to determine which aquifer or aquifer segments qualify for potential reclassification to G-I aquifers. Adoption of these criteria does not imply nor does it designate aquifer or aquifer segments as G-I. Such designation can only be achieved through reclassification by the Commission after eligible segments have been mapped by the Department. (6)... the following procedure shall be used to designate Class G-I aquifers: Rulemaking procedures pursuant to Chapter 17-102, F.A.C., shall be followed; Fact-finding workshops shall be held in the affected area; All local, county, or municipal governments, water management districts, state legislators, regional water supply authorities, and regional planning councils whose districts or jurisdictions include all or part of a proposed G-I aquifer shall be notified in writing by the Department at least 60 days prior to the workshop; A prominent public notice shall be placed in an appropriate newspaper(s) of general circulation in the area of the proposed G-I aquifer at least 60 days prior to the workshop. The notice shall contain a geographic location map indicating the area of the zones of protection and a general description of the impact of reclassification on present and future discharges to groundwater. A notice of a G-I workshop shall be published in the Florida Administrative Weekly prior to the workshop(s). At least 180 days prior to the Commission meeting during which a particular zone of protection will be considered for reclassification, the Department will provide notice in the Florida Administrative Weekly and appropriate newspaper(s) of the intended date of the Commission meeting. The Commission may reclassify an aquifer or aquifer segment as a G-I aquifer within specified boundaries upon consideration of environmental, technological, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. When considering a reclassification an aquifer or aquifer segment shall: ....(Be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined or from leaky confined aquifers.).... Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones or protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. (Emphasis added). While, if and when applied, the proposed rules would certainly have a direct economic impact as a consequence of a reclassification of an aquifer to G-I and the designation of a zone of protection, as well as the standards for discharge to that aquifer, such costs at this stage are not direct or are not quantifiable. When mapped and the zones of protection identified, a reasonable assessment of the economic cost or benefit of the proposal can be addressed. This is specifically reserved by the Commission whereby its decision to reclassify an aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow rule making procedures and be based on consideration of economic factors. This result obtains whether the affected party is a small business or some other entity. In reaching the conclusion that the economic costs or benefits of the proposed rules, apart from the cost of mapping, do not at this stage have a direct or quantifiable impact, I have not overlooked the "announcement effect" that is occasioned by the announcement of a governmental agency to regulate an activity. Such announcement certainly has a chilling effect on the community that may reasonably be impacted. The economic impact is, however, speculative or not quantifiable in the instant case. Further, the proof does not demonstrate any incorrectness or unfairness in the proposed adoption of the rules occasioned by the EIS prepared in this case.
The Issue Whether Petitioner was wrongfully denied general permits to construct an extension to a public water supply distribution system and to construct a waste water treatment system at a camp being constructed by Petitioner.
Findings Of Fact On December 11, 1991, the Department of Environmental Regulation (DER), Ft. Myers office, received applications from the Orange Blossom Baptist Association, Petitioner, submitted by its project engineer, for general permits to install an extension to provide water to, and construct a waste water treatment facility for, a camp being built by Petitioner. These applications were reviewed by the Respondent, and on January 2, 1992, James Oni telephoned Petitioner's engineer to tell him the applications were incomplete and additional information was required. Some of this additional information was submitted by Petitioner on January 7, 1992, but the word "vertical" was left out of the application to indicate what the 18 inch separation of the water and sewer lines represented; no pump out was provided for the lift station; the flotation formula as submitted contained a typographical error where an "s" was substituted for a "5", leaving the calculation of storage capacity of the system indeterminable; the lift station was only 4.5 feet deep and should normally be 10 feet; the configuration of the sump to insure solids would settle to the bottom was not provided, nor was the amount of concrete to be used to obtain this configuration shown; and the type of equipment to be used was not clearly shown. In summary, when submitted the application was not technically correct, and it remained technically incorrect after the additional information was submitted by the applicant. General permits are required to be processed by DER within 30 days of their receipt, and if not denied within that 30 day period they must be approved regardless of their compliance with the statutes and regulations.
Recommendation It is recommended that a Final Order be entered denying Orange Blossom Baptist Association general permits to install a waste water treatment facility and to construct an extension to a public water supply distribution system in Highlands County, Florida. ORDERED this 6th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1992. COPIES FURNISHED: William N. Clark, P.E. 233 E. Park Avenue Lake Wales, FL 33853 Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether the Respondents are guilty of misconduct as alleged in the Administrative Complaint filed on February 6, 1991, as amended and, if so, what corrective action should be ordered and what penalties imposed; and whether Paul Ayers is guilty of misconduct as alleged in the Notice of Denial of Operator Certification dated June 3, 1991, and, if so, whether the Department's action denying renewal of Mr. Ayers' wastewater treatment plant operator certification was correct.
Findings Of Fact Mr. Paul Ayers holds operator certificates issued by the Department in both drinking water treatment (Class C, No. 4360) and wastewater treatment (Class B, No. 3375). The Department's Notice of Denial of Operator Certificate, which forms the basis for the Division of Administrative Hearings case No. 91- 3861, identifies the wastewater treatment certificate number as Class B, No. 3375. Paul Ayers did submit certain Drinking Water Treatment Plant Daily Operation Summaries in which he identified his water treatment certificate as Class C, No. 4360 (Department Exhibit 8). Ms. Judy Devores is a Department certified Class C water treatment plant (WTP) operator (Certificate No. 4885) and a Class C wastewater treatment plant (WWTP) operator (Certificate No. 4753). Mr. Ayers and Ms. Devores are president and vice president, respectively, of Paul Ayers Utilities, Inc., a company that contracts with the owners of drinking water and wastewater treatment plants to operate them. Ms. Devores is sometimes known as Ms. Ayers (Department Exhibits 25 and 26). The office of the utilities company is in the home they share. The utility company has a handful of employees. The Department's Amended Complaint alleged that during the calendar year 1990, Respondents operated the following public water treatment plants and wastewater treatment plants: ST. LUCIE COUNTY WATER WASTEWATER Coggin Osteen Auto Dealership Coca Cola Foods Distribution Center Demarco's Restaurant Floresta Elementary School Floresta Elementary School Florida Power & Light Distribution Center Fontenelle Plaza Glendale Commons Subdivision Glendale Commons Subdivision Lakewood Park Subdivision Lakewood Park Subdivision Johnny's Restaurant Lakewood Park Plaza Loyal Order of Moose #248 Orange Co. of Florida, Orange Co. of Florida, Grove Grove Operations Complex Operations Complex Orchid Acres Mobile Home Orchid Acres Mobile Home Park Park Port St. Lucie Port St. Lucie Convalescent Center Convalescent Center Quick and Easy Convenience Store Raven Parc Industrial Park Rainbow Trailer Park Teacher's Place Child Care Visa St. Lucie Condominiums Vista St. Lucie Condominiums Whispering Creek La Buona Vita Lakewood Park Elementary Port St. Lucie Medical Center MARTIN COUNTY WATER WASTEWATER Lobster Shanty Restaurant Regency Mobile Home Park Regency Mobile Home Park Vista Del Lago Condominiums Vista Del Lago Condominiums Yankee Trader Plaza INDIAN RIVER COUNTY WATER WASTEWATER Citrus Elementary School Fellsmere Elementary School Fellsmere Elementary School Sebastian River Middle School Sebastian River Middle School OKEECHOBEE COUNTY WATER WASTEWATER Barlow's Fish Camp Big "O" R.V. Campground Barlow's Restaurant Four Acres Mobile Home Park Bob's Big Bass RV Park Pier 2 Motel Circle K Taylor Creek Lodge Crossroads Restaurant Town & County Mobile Home Martha's House Zachary Taylor Mobile Home Moose Lodge #1753 Town Star Convenience Store GLADES COUNTY WATER Old River Run Many of these water and wastewater treatment plants were acknowledged during the hearing as being operated by Paul Ayers Utilities, Inc. Some were not mentioned during testimony, but show up on various exhibits. Department's Exhibit 16, the minutes of a meeting held between the Department and Ms. Devores, contain a partial list of plants operated by Respondents. Lakewood Plaza On September 30, 1990, Paul Ayers and his employee, Danny Runyan, removed a water pump, flow meter, and chlorine feed pump from the Lakewood Plaza water treatment plant. This action interrupted potable water service to the facility until October 3, 1990. Ms. Devores contended that the owner of Lakewood Plaza had not paid Respondents for the equipment, and that she notified Jerry Toney of the Department prior to removal of the equipment, who told her "to take it if it was ours." Mr. Toney's contradiction of Ms. Devores' account is more believable. He first heard of the disabling of the Lakewood Plaza water treatment plant in a phone call from Wayne Dampier on October 1, 1990, notifying Mr. Toney that Mr. Dampier would replace the water pump that day, but no chlorinator pump could be installed until the next day. Ms. Devores' call to Mr. Toney was made after the equipment had been removed and after Mr. Dampier's call. A contemporaneous entry into the Department's records also indicates that Ms. Devores called the Department on October 1, 1990, after the water treatment plant had been disabled. Expert testimony established that disabling a water treatment plant is a potential public health hazard, and that deliberate disabling of a water system by an operator is not the same as accidental interruption of operations. Rule 17-555.350(3), Florida Administrative Code, requires an operator to receive written permission from the Department prior to altering or discontinuing water purification. This forms a basis for the operator's duty to avoid unilateral action. Removal of essential parts of a water treatment system as a remedy for nonpayment of bills for operator services threatens not only the owner of the system but also the public health, and is contrary to the Rule and to standard operating practices. Even were the testimony of Ms. Devores credited, oral notification to the Department before removal of equipment, or even oral acquiescence by an employee of the Department to removal undertaken to enforce collection of bills for services by disabling a public water system would not justify that action, which is inappropriate under Rule 17-555.305(3), Florida Administrative Code. Licensees have a duty to know the rules controlling their regulated activity. Mr. Ayers had been notified by the Department in 1986 that removing equipment (a gas chlorinator) from a public water system at Sand Dollar Villas was a serious violation of the duties of a certified operator and could result in revocation of his operating certificates. (Department Exhibit 13) The evidence is clear and convincing that Respondents did not notify the Department prior to removing the equipment. Deliberate disruption of a public water supply by a certified operator constitutes gross neglect and incompetence in the performance of the duties of a certified operator, with potential public health consequences. Both Mr. Ayers and Ms. Devores are responsible for this misconduct, as both participated in it. Use of Uncertified Personnel Danny Runyan was employed by Respondents during the period from approximately 1983 to May 1991. Mr. Runyan acknowledged that he never has been certified to operate water or wastewater treatment plants, but that during calendar year 1990, he fulfilled certified operator duties at Coggin O'Steen, Fontenelle, FPL Distribution Center, J & S Fish Camp, Johnny's Restaurant, PSL Medical Center, Quick & Easy, Rainbow Trailer Park, Raven Parc, Teachers' Place, Cinnamon Tree, Floresta Elementary School, Glendale Commons, Port St. Lucie Convalescent Home, and Vista del Lago plants under the direction or instruction of Paul Ayers or Judy Devores. Donna Anderson was employed as secretary and office manager at Respondents' business and to perform domestic work for Respondents who ran their business out of their home, for two years and nine months from 1988 to approximately October 1990. Her testimony corroborated Runyan's admissions, as did the testimony of Wayne Dampier, who is a certified operator for both water and wastewater treatment plants and who was employed by Respondents during a period from approximately October 1985 to August 1990. Ms. Anderson heard Paul Ayers or Judy Devores direct Danny Runyan to operate plants; it was common knowledge among Respondents' employees that Mr. Runyan operated plants. Mr. Dampier heard Paul Ayers direct Danny Runyan to operate plants, and Paul Ayers also directed Mr. Dampier to direct Danny Runyan to operate plants. Respondents contended that they did not know that Danny Runyan was operating plants, and that if he was doing so it was solely on the instruction of Wayne Dampier, a field manager for Paul Ayers Utilities, Inc. This is not believable, because the same pattern was followed with the work of another employee, John Canard. 2/ John Canard was uncertified, but received direct instructions about which plants he was to operate from Wayne Dampier. Mr. Canard believed that the instructions originated with Respondents, who were aware that he was operating water treatment plants before he was certified. Mr. Canard's belief is supported by Mr. Canard's time sheets (Respondents' Exhibit 26) which shows that between December 29, 1989, and January 19, 1990, while Mr. Canard was not yet certified in water treatment operations, he visited the following water treatment plants which Respondents serviced: 12/29/89 12:00 Lobster Shanty 12:15 Yankee Trader 2:15 Teachers Place 4:45 Fontenelle Plaza 1/2/90 3:00 Lobster Shanty 3:30 Yankee Trader 1/3/90 11:45 Yankee Trader 1:45 Teachers Place 4:00 Fontenelle Plaza 1/4/90 10:00 Johnny's Restaurant 12:15 Lobster Shanty 1:00 Yankee Trader 1/5/90 1:00 Yankee Trader 3:30 Teachers Place 5:15 Fontenelle Plaza 1/8/90 1:30 Teachers Place 3:15 Yankee Trader 5:45 Fontenelle Plaza 1/9/90 10:30 Lobster Shanty 11:15 Lobster Shanty 12:00 Yankee Trader 2:30 Johnny's Restaurant 3:30 Fontenelle Plaza 1/10/90 12:45 Teachers Place 1:15 Fontenelle Plaza 5:00 Yankee Trader 1/11/90 2:45 Yankee Trader 4:00 Fontenelle Plaza 1/12/90 1:15 Lobster Shanty 3:30 Yankee Trader 4:00 Fontenelle Plaza 1/15/90 4:00 Yankee Trader 1/16/90 1:00 Yankee Trader 1:30 Lobster Shanty 5:30 Fontenelle Plaza Respondents maintained that John Canard operated the Rainbow Park water treatment plant and offered his time sheets as evidence, which show that he did so prior to May 1990. Mr. Canard's time sheets show several entries for Rainbow Park prior to certification, including 3/27/90 at 1:00 p.m.; 4/5/90 at 2:00 p.m.; 4/10/90 at 1:15 p.m.; 4/12/90 at 3:45 p.m. and 4/17/90 at 12:30 p.m. The evidence establishes a pattern of using uncertified operators which Respondent knew or should have known about, based on the employee time sheets. It is not credible that Mr. Canard visited these plants on such a regular basis without providing operator service, or that Respondents did not see the time sheets in the regular course of their business. Respondents had to know that their employees were operating plants for which they were not certified. Respondents' contention that all irregular practices originated with Wayne Dampier, and that they knew nothing about them until they met with the Department in June 1990 is undermined by the testimony of Lowell Polk. Mr. Polk was an employee of Respondents for a nine-month period during 1988. At that time, Mr. Polk was certified in water treatment plant operation only, not wastewater plants. 3/ While employed, Mr. Polk told Judy Devores that Wayne Dampier had asked him to operate a wastewater treatment plant when Mr. Polk was not certified as a wastewater treatment plant operator. Ms. Devores replied "don't worry about it, just do it." He did so, until he was discovered by the Department, and then told Ms. Devores that he did not want to do it anymore. This incident exemplifies the casual attitude the Respondents had toward regulations governing their business. The Department has established by clear and convincing evidence the allegations of Count III of the Amended Complaint. During calendar year 1990, Respondents employed Danny Runyan, a person uncertified in either water or wastewater treatment plant operation, to fulfill certified operator requirements at water and wastewater treatment plants, a practice which can result in a threat to public health. Raven Parc - No Certified Operator Jerry Toney inspected the Raven Parc water treatment plant on February 16, February 19, February 20, February 21, February 22, and February 23, 1990. Through February 23, 1990, there were no entries in the on-site operation and maintenance log. The absence of entries indicated no visits by an operator on any of those days. When he inspected again on February 26, 1991, all the data had been backfilled by someone using the initials "J.D." as certified operator. Danny Runyan admitted that although he was the de facto operator of the Raven Parc plant, he did not visit the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. The Department has established by clear and convincing evidence the allegations of Count II of the Complaint that no certified operator, or indeed any operator, visited the Raven Parc water treatment plant during the period from February 16 through February 23, 1990. Use of an individual to provide operator services at a water treatment plant who is uncertified, and failure to provide any operator coverage at all for a week each constitute serious inattention to operations which could result in a hazard to public health. Raven Park - Backfilled O & M Log, False Use of Initials Certified operators are under a duty to "maintain an operation and maintenance log for each plant . . . current to the last operation and maintenance performed . . . . The log, at a minimum, shall include . . . the signature and certification number of the operators." Rule 17-602.360(1)(e), Florida Administrative Code. It is the practice in the industry for certified operators to initial rather than fully sign each entry in the O & M log. Mr. Runyan entered the initials of Judy Devores, a certified operator, after the fact in the O & M log for February 16, 19, 20, 21, 22 and 23, 1990. Mr. Runyan "backfilled" and used the initials "J.D." at the instruction of Respondents. Respondents' denial that they ever instructed Mr. Runyan to use their initials and backfilled O & M logs is not credible in light of Mr. Runyan's admission and the corroborating testimony of John Canard, who also testified that he was instructed by Paul Ayers to backfill O & M logs. The Department has established by clear and convincing evidence the allegations of Count II of the Amended Complaint that a certified operator initials, namely Judy Devores' initials, were "backfilled," or entered after the fact, at the Raven Parc plant during February 1990. This was done with the knowledge and approval of Respondents. The practice of "backfilling" is contrary to standard operating practice for water treatment plant operators. Raven Parc - Inadequate Chlorine Residuals When Jerry Toney visited the Raven Park plant on February 7, February 14, February 22, February 23, and February 26, 1990, he took chlorine samples and found inadequate chlorine residuals, that is, a free chlorine residual of less than 0.2 milligrams per liter (mg/1). Chlorine residuals are an assurance that no biological or bacteriological contamination will taint the water supply. The readings were taken after Mr. Toney had "flushed" the system at full tap for three minutes, which is a remedy for a low chlorine residual. Chlorine residuals in treated water can vary over the course of time, and a reading taken by a Department inspector on a particular day might not match exactly the chlorine residuals obtained by an operator at a different time on the same day. Rule 17-550.510(6)(d), Florida Administrative Code, requires "a minimum free chlorine residual of 0.2 milligrams per liter or its equivalent throughout the distribution system at all times." On February 7, 14, 22, 23 and 26, 1990, the chlorine residuals documented by Jerry Toney at the Raven Parc Water Treatment plant did not meet the requirement of Rule 17-550.510(6)(d), Florida Administrative Code. These inadequate chlorine residuals on February 22 and 23, 1990, the dates alleged in the Amended Complaint, were a direct result of gross neglect by Respondents in the operation of the plant, by failing to visit it over an extended period of time, and resulted in a condition which was a potential public health hazard. This aspect of Count II of the Amended Complaint has been established by clear and convincing evidence. Raven Parc - Falsified Chlorine Data Rules 17-550.730(1) and 17-601.300(1)(a), Florida Administrative Code, require monthly operating reports to be submitted to the Department for drinking water treatment plants and wastewater treatment plants. With regard to water treatment plants, and specifically, the Raven Parc water treatment plant, it was the practice of Paul Ayers Utilities, Inc., to keep a "Drinking Water Treatment Plant Daily Operation Summary" worksheet [DER Form 17-1.208(5)] at the plant on which to record certain measurements such as flow, pH and chlorine residuals. The Daily Operation Summary worksheet is also known as an MOR (monthly operating report) worksheet. At the end of each month, the MOR worksheets would be brought into the office, where the information on the worksheet would be transferred to the "official" monthly operating report [DER Form 17-555.910(2)], which would be signed by the lead operator to certify to its accuracy and sent to the Department. The information on the worksheets was the best and most accurate information available for flows, pH, and chlorine residuals on any particular day. The chlorine residual values certified to the Department by Ms. Devores for February 19, 21 and 23, 1990, are different than the values recorded in the on-site MOR worksheet. The on-site entry for each of those days shows the chlorine residuals (in mg/1) were 1.0 at the plant and 0.3 at the remote tap each day, but the MOR as submitted shows 1.8 and 0.8 respectively on those days. These MOR entries are false. Department Exhibit 4, the certified MOR for Raven Parc for February 1990 signed by Ms. Devores, shows that the entries for February 6, 9, 12 and 16, 1990, have been whited-out and reentered. The original entries on Department Exhibit 4, the certified MOR, had higher values than recorded on Department Exhibit 3, the MOR worksheet. Those higher values had originally been entered to satisfy the concerns expressed by Jerry Toney in a note left on the Raven Parc MOR worksheet on February 16, 1990: "Judy, the DER classifies .3 - .4 chlorine as 'marginal.' We would like to see it higher. Also, the system requires a weekend visit. Thanks, Jerry 878-3890" (Department Exhibit 3). The higher values were whited-out and changed back to the lower values actually recorded on the on-site MOR worksheet, because Respondents realized that Mr. Toney had seen the on-site MOR worksheet for all dates up to February 16, 1990, when he made the dated notation on the worksheet. This conclusion is supported by the appearance of the document itself and by Donna Anderson's testimony that, while she generally transferred the information from the MOR worksheet to the MOR for submission to the Department, she never whited-out data on an MOR, and that she did not do so in this instance. Ms. Anderson testified that after she had typed in the MOR header information and transferred data from the MOR worksheet, it was routine practice for Respondents to take the MORs and "fill in for days that were missing." All of the chlorine values recorded and reported on the official form fall within acceptable values established in Rule 17-550.510(6)(d), Florida Administrative Code. This is not surprising, since they were all made up at the time they were backfilled on the worksheet. Danny Runyan admitted that he did not actually visit the plant during the period from February 16 to February 23, 1991, Findings 23 and 24, above. All information recorded for those days on both the MOR worksheet and the MOR submitted to the Department were fabricated. The evidence clearly and convincingly establishes that the chlorine data on the MOR submitted to the Department for the Raven Parc water treatment plant for February 16-23, 1990, and certified by Ms. Devores as correct, were knowingly falsified. The Department has proven the allegations of Count VII of the Amended Complaint. Raven Parc - Falsified Flow Data Judy Devores and Paul Ayers respectively signed and submitted the February 1990 and March 1990 MORs for Raven Parc. They each reported at least twenty-four daily entries of "Total Water Treated in Gallons," that is, flow of treated water. It was admitted that the flow meter at Raven Parc was inoperative. By tracking the amount of time a water pump operates with an elapsed time clock, an operator may calculate flows of treated water. An elapsed time clock was installed at Raven Parc at some point. The issue raised by the Department is whether the elapsed time clock was available and used to calculate the treated water flows certified by Respondents in February and March 1990. Respondents claimed that an elapsed time clock was installed at Raven Parc on February 8, 1990. In support of this contention, Respondents offered a photocopy of a work order in Danny Runyan's handwriting, indicating the installation of an elapsed time clock at Raven Parc. The date on this document is obscured and cannot be read. Even Paul Ayers had trouble trying to decipher a date on the exhibit at the hearing (Respondent's Exhibit 25). Jerry Toney in February 1990, and Wes Upham and Jerry Toney together, on June 25, 1990, looked for an elapsed time clock at the Raven Parc water treatment plant found none. Mr. Runyan and Mr. Dampier both testified that the elapsed time clock was installed "in June" and "after the meeting with the Department," which took place on June 25, 1990. Ms. Anderson also believed that elapsed time clock was installed in June, although she was "not sure." Her belief is consistent with the testimony of Mr. Runyan and Mr. Dampier. Taken together, this testimony is highly persuasive. Mr. Runyan testified that he was instructed by Wayne Dampier to put the time clock "at the breaker panel in the top part of the panel under the top of the lid" because "they didn't want DER to see it." Mr. Dampier admitted relaying instructions from Paul Ayers to "put it in an inconspicuous area to where it wouldn't be as noticeable so if the DER come out looking for it they wouldn't find it just right offhand." Determining water flows by the use of an elapsed time clock requires multiplication of the time the water pump was operating by the capacity of the pump. Neither the MOR worksheet, nor the O & M log for Raven Parc contained such calculations. Even according to Mr. Ayers' contentions, the elapsed time clock was not installed until February 8, 1990, at the earliest. The MOR submitted to the Department for February 1990, signed by Judy Devores, includes entries for "Total water Treated in Gallons," i.e. flow, for February 1, 2, 3, 5, 6 and 7, 1990, as well as for the rest of the month. It has already been established that no one visited the plant between February 16 and February 23, 1990, but flows are entered for February 16, 17, 19, 20, 21, 22 and 23, 1990. (Department Exhibit 4). These facts wholly undermine the claim that flow was measured by an elapsed time clock and accurately recorded and certified to the Department by Respondents. Viewing the evidence as a whole, the Department has presented clear and convincing evidence to establish the allegations of Count VI of the Amended Complaint, that no means to measure or to estimate flow data was available at Raven Parc during this period. The flow data submitted on the Raven Parc MORs for February and March 1990, by Paul Ayers and Judy Devores were falsified. Raven Parc - Failure to Fulfill Duties of "Lead Operator" On June 25, 1990, the Department and Judy Devores met to discuss the operation of Raven Parc plant. At that meeting, Ms. Devores stated that she did not operate the Raven Parc plant, and in testimony, Ms. Devores stated she did not visit Raven Parc. Ms. Devores signed the Raven Parc MOR for February as lead operator, however, and the initials "JD" are the only initials which appear on the Raven Parc O & M log for February 1990 (Department Exhibits 1 and 4). Ms. Devores exhibited a lack of familiarity with the actual conditions at Raven Parc during the June 25th meeting. This was inconsistent with a person who properly functioned as its lead operator. According to the Department's expert, the lead operator is "the individual with the most knowledge of the workings of that treatment plant and its condition at any given point in time." (Tr. Day 1, p. 69) At a minimum, a lead operator personally should provide once-a-week on-site supervision to a certified operator, and should never delegate the operation of a water treatment plant to an uncertified operator. Danny Runyan was the de facto operator of the Raven Parc plant, and admitted that he did not visit the plant from February 16 through February 23, 1990. Rule 17-602.200(11), Florida Administrative Code, defines "lead or chief operator" as "the certified operator whose responsibilities include the supervision of all other persons who are employed at a plant, performance of on- site treatment plant operation and whose responsibility it is for the effectiveness and efficiency of the overall treatment plant operation." While Ms. Devores may not have ever gone to the plant, she was responsible for its operation as the lead operator, and should have done so. The Department has presented clear and convincing evidence to substantiate the allegations of Count IX of the Complaint that Judy Devores did not fullfil the duties of a lead operator for the Raven Parc water treatment plant. Raven Parc and Moose Lodge - O & M Log Falsification The Loyal Order of Moose #248 water treatment plant is located in Fort Pierce, and is 12.0 miles away from the Raven Parc plant. Travel between the two plants takes approximately 20 minutes. An operator with the initials "JD" arrived at each plant on February 20, 1990, at 4:15 and left each plant at 4:30, according to the O & M logs at each of the two plants. Similarly, on February 22, 1990, "JD" left the Moose Lodge at 4:30 and arrived at Raven Parc at 4:30. The handwriting on the logs appear to be the same, but the initials do not appear to be in the handwriting of Judy Devores. (See the signature on Department Exhibits 4 and 16, and the initials in the entries for August 21 to August 25 on Department Exhibit 33.) The O & M logs for Raven Parc and Moose Lodge are documents required to be kept by the operator "current to the last operation and maintenance performed." Rule 17-602.360(1)(e), Florida Administrative Code. They are falsified for February 1990. The facts alleged in Count VIII of the Complaint are true. The false O & M log for Raven Parc for February 1990, was maintained by Danny Runyan, with the authorization and under the direction of Judy Devores. Other Falsified O & M Logs The Amended Complaint alleged in Count X that initials of Judy Devores were entered in O & M logs for days she did not visit facilities, and could not have visited facilities because she was out of town. Specific instances are tabulated below: JUDY DEVORES Big O WWTP July 18, 1990 (10-10:30 AM). Glendale Commons WTP July 1990: 18th (3-3:30 PM) 23rd - 25th, 30th and 31st, August 1990: 1st, 2nd, 3rd, 6th, 9th, 10th, 13th and 14th. Johnnies Restaurant WTP June 11th and 12, 1990. Pier II Motel WWTP July 18th, 1990 (10-10:25). Rainbow Trailer Park WTP July 24th and 27th, 1990. Zachary Taylor WWTP July 18th, 1990 (12:15 - 12:45 PM). The Department introduced at hearing copies of the relevant O & M logs (Department Exhibits 27 through 35), and airline ticket receipts which show that the Respondents were out-of-state on the relevant dates (Department Exhibits 24 through 27), and the testimony of Danny Runyan, who admitted that he had signed those O & M logs. Judy Devores characterized Danny Runyan's testimony as erroneous. She was not sure whether or not she used the ticket introduced as Department Exhibit 25, and maintained that she used the ticket introduced as Department Exhibit 26, but left on July 19, 1990, rather than July 18, the departure date noted on the ticket receipt. Judy Devores also asserted that she went to all five plants listed in paragraph 21 of the Amended Complaint as having been visited by "J.D." on July 18, 1990 because "Wayne was on vacation. Paul and I had to cover the plants." She could not blame Wayne Dampier for false entries on those days. She swore that she went to the West Palm Beach airport and "missed the plane" scheduled to leave at 9:34 a.m. on July 18, 1990, and by 10:00 a.m., after having taken the time to make arrangements to pay an extra $75.00 and be reticketed for a next-day departure, arrived at the Big O water treatment plant in Okeechobee County (Department Exhibit 29). This is not believable. Ms. Devores would have had to miss both flights (or used neither of the non-refundable tickets offered as Department Exhibits 25 and 26) in order to establish her presence at the various water and wastewater treatment plants on the dates her initials appear. Ms. Devores hinted, but offered no proof, that Wayne Dampier falsified initials on O & M logs, presumably to get them in trouble. The testimony of Judy Devores is not credible, and her evidence inadequate to overcome the Department's proof, especially in light of Danny Runyan's admission. The initials entered showing Judy Devores performed services at the facilities listed in Finding 63 above are false. The allegations of Count X have been proven by clear and convincing evidence. Falsified BOD and TSS Data The Department's Amended Complaint alleged in Count IV that during calendar year 1990, Respondents reported biochemical oxygen demand (BOD) and total suspended solids (TSS) data in the wastewater treatment plant MORs for the Town & Country wastewater treatment plant and other facilities operated by them, for which no analyses were performed. BOD and TSS and measurements of the treatment efficiency of wastewater plants, and maximum counts for BOD and TSS are established by the Department in Rule 17-600.420, Florida Administrative Code, which sets minimum treatment standards. Measuring and reporting BOD and TSS values is required for the protection of public health. Rule 17-601.300, Florida Administrative Code, requires monthly monitoring and reporting of BOD and TSS. The MOR, which is the reporting format for BOD and TSS, must be signed by the "lead operator in charge of operating the treatment facility." While the Rule imposes a duty on "wastewater treatment facilities" to monitor effluent for compliance with the rules, the common practice in the industry is for the operator to be responsible to collect samples, forward the samples to a laboratory for analysis, receive the lab report and report the laboratory results to the Department. Respondents did not deny that monitoring of BOD and TSS was part of the operating services they had contracted to perform. In support of the allegation that BOD and TSS analyses were not done, the Department submitted MORs for each month in 1990 for six wastewater treatment plants: Town and Country Mobile Home Park, Big O RV Park, Four Acres Mobile Home Park, Motel Pier II, Taylor Creek Lodge, and Zachary Taylor RV Camp (Department Exhibits 19a-19f). Each of these MORs has a value entered in the space labeled "BOD (mg/1) EFFLUENT" and "TSS (mg/1) EFFLUENT." All are signed by Paul Ayers or Judy Devores. In the course of discovery, the Department asked Respondents in deposition which laboratories Respondents used for analysis of BOD and TSS. The labs identified as performing analyses for Respondents were East Coast Laboratories, Bioservices, and Envirometrics, with Envirometrics being the lab mainly used. Affidavits from the directors of Bioservices and East Coast Laboratories indicate that neither of those laboratories performed any BOD or TSS analyses for Respondents. 4/ Proof of the non-existence of reports by those labs is admissible under Section 90.803(7), Florida Statutes (1991). The Department subpoenaed and copied the records of Envirometrics, and Francisco Perez prepared a summary of the documents, which the director of the laboratory confirmed in an affidavit to be accurate, with certain corrections. The summary shows only 11 rather than 72 instances of lab analyses (six plants times 12 months of MOR entries) for the plants listed in Finding 75: Big O - 2; Town & Country - 2; Four Acres - 2; Motel Pier II - 3; Zachary Taylor - 2; and Taylor Creek Lodge - 0. While Donna Anderson was employed, there was no procedure for collecting monthly effluent samples from the approximately 21 wastewater treatment plants operated by Respondents. Ms. Anderson did not receive regularly 21 sets of lab reports for BOD and TSS, and she saw no evidence at Respondents' office/home that 21 sets of such samples routinely were being collected, stored, or delivered to any laboratory for analysis. John Canard and Danny Runyan each testified that they did not regularly collect effluent samples from wastewater treatment plants they maintained. Applying the standard of clear and convincing evidence, the Department has proven that the BOD and TSS analyses were not performed, although both Paul Ayers and Judy Devores certified they had been in Department Exhibits 19a-19f. The Department's evidence is not rebutted by Respondents' bare assertions, with no supporting documentation, that the required laboratory analyses were performed. Their refusal to identify the lab or lab technician they maintain ran the tests for them renders their testimony highly suspect, and the evidence of other falsifications make their testimony unbelievable. See Finding 130(a), below. Falsified Bacteriological Data Rule 17-550.510(6)(b), Florida Administrative Code, requires at least monthly monitoring of each regulated water system for coliform bacteria (bacteriologicals). One representative raw sample and two samples from the distribution system (sometimes identified as remotes) are required. Rule 17- 550.730(1)(a), Florida Administrative Code, requires monthly reporting of the bacteriological results to the Department. Respondents undertook the sampling and reporting requirements as part of their operating service agreements but did not follow appropriate sample collection methods. Wayne Dampier, Danny Runyan, and Donna Anderson each testified that for the month of October 1990 unlabeled samples were brought into the office, and Paul Ayers, Danny Runyan and Donna Anderson assigned arbitrary and false identifications to the bacteriological samples, identifying them as various facilities operated by Paul Ayers Utilities, Inc. These falsely labelled samples were then submitted to a laboratory for analysis and the results were reported to the Department. The practice of intentionally submitting mislabeled bacteriological samples and reporting false results constitutes submission of fraudulent data, gross neglect in the performance of the duties of a certified operator which can result in adverse public health consequences, and violates standard operating practice for plant operators. Paul Ayers simply denied that he ever collected samples from one location or misalabeled unlabeled samples, and called Donna Anderson's testimony untrue. This testimony is not credible. The allegation of Count XI of the Amended Complaint, that bacteriological samples were mislabeled during the month of October 1990 to seem to have come from other treatment plants, has been proven by clear and convincing evidence. Floresta Elementary - Inadequate Operator Visits The Amended Complaint alleged in Count XII that Respondents failed to provide the Floresta Elementary School water treatment plant the required five visits per week plus one weekend visit for the period from August 22, 1990, through April 23, 1991. The Department offered copies of the on-site O & M log for the relevant period showing inadequate coverage (Department Exhibit 39), and the testimony of Wes Upham. A letter from the school, dated July 26, 1991, states that "Present Operator Paul Ayers Utilities states they have been operating the plant at least 5 days per week for the past several months since Department notice to that effect." The "Department notice" referred to is the notification Wes Upham gave to the school board after his inspection on April 26, 1991. From April to July is "several months" of five day per week operator coverage. The letter does not establish adequate operator coverage for the period at issue: August 22, 1990, to April 23, 1991, and so does not exonerate Mr. Ayers. Kevin Prussing serviced Floresta Elementary for Paul Ayers Utilities, Inc. He was asked by counsel for Respondents whether Paul Ayers called him in April of 1991 to tell him to start going to visit Floresta. Mr. Prussing replied that he did not remember the exact date, but it was after "the question came up about how many visits" and after "it was settled amongst Paul and whoever. . . " (Tr. Day 2 p. 179), which was after the Department's Notice of Noncompliance dated July 10, 1991, was sent to the school board. Paul Ayers did not deny that prior to April 23, 1991, operator coverage was less than five day per week plus one weekend visit. He asserted that his company entered into a contract with the school board which called for three day per week coverage, and that prior to plant modifications in August 1990, only three day per week coverage was required for the Floresta Elementary School water treatment plant. Mr. Ayers acknowledged that he knew five days per week with one weekend visit was required after the plant modifications were completed in August 1990, and that he informed a representative of the school board of that fact. Mr. Ayers claimed that the school board representative refused to pay for additional operator coverage until he was notified by the Department of increased operator coverage requirements. The Department established through the testimony of Rim Bishop, Wes Upham and Kevin Prussing that a licensed operator and the owner of a water treatment plant each have an independent responsibility to know and comply with the plant coverage requirements, which are designed to protect public health. Both Rim Bishop and Kevin Prussing, certified water treatment plant operators, testified that they would not accept a customer who wanted them to provide less than the required operator coverage. The Invitation to Bid circulated by the school board on May 9, 1990, to which Paul Ayers responded on May 23, 1990 (Department Exhibit 37), has a set of "Special General Conditions," which include the following for Floresta Elementary School: "Provide service for both water and wastewater treatment plants, as required by current DER regulations." This specification indicates that the school board intended the operator to make the judgment about appropriate operator attendance requirements. No specific number of days was required in the school board's bid documents. Other operating companies (not including Respondents) contacted the Department to find out how many visits per week would be required at Floresta. For some time before completion of the modifications to Floresta Elementary's system, the school's water supply was such a problem that the school board was required to supply bottled water for cooking and drinking, and to post warnings that bathroom water was not potable. From the time Mr. Ayers became the operator of the Floresta Elementary School water plant, he knew or should have known that water quality was a problem and that extensive treatment modifications were forthcoming. The plant's system, as modified in August 1990, included aeration, gas chlorination, multimedia filtration and ion exchange softening. Proper operation of this system requires blending of raw and treated water. Andrew Helseth, the plant engineer, pointed out that this plant "was only the second one that has had filters and softeners on it". Kevin Prussing, the current operator of the Floresta plant, testified that the plant modifications caused the plant to be "unusual" and "pretty complex" and stated that the engineer was still "very heavily" involved in making corrections. The O & M logs for Floresta Elementary School indicate a period in early 1991 when the plant was visited only twice a week by Respondents. An examination of the O & M logs show that during the week of February 24 to March 2, the plant was visited only twice; from March 3 to March 9 only once; from March 17 to March 23 twice; from March 24 to March 30 twice. The plant was not visited at all from February 28 to March 9, 1991, a period of nine days. This plant is located at a public elementary school. It had a history of water quality problems, and the unique combination of treatment processes. It was gross negligence for an operator to provide less than the three visits per week arguably covered by contract, and less than the required coverage of fives days plus one weekend visit which Mr. Ayers acknowledged, and to leave the plant unattended for nine days. Respondents' claim that the owner of the facility is responsible for ensuring operator coverage is inadequate to overcome the Department's clear and convincing proof with regard to Count XII of the Amended Complaint, that Paul Ayers failed to provide the required operator coverage at the Floresta Elementary School water treatment plant between August 22, 1990, and April 23, 1991. Floresta Elementary - Monitoring Requirements It is essentially undisputed that Respondents failed to monitor the Floresta Elementary plant on each visit for turbidity and water hardness at the water's point of entry into the system, and failed to measure on each visit the raw, bypass and finished water flows. In their defense, Respondents showed that there is no specific permit requirement or rule which mandates such monitoring. The Department established by clear and convincing evidence, including the testimony of Rim Bishop, Wes Upham, Kevin Prussing and Andrew Helseth, and the construction permit issued for the Floresta Elementary School water treatment plant (Department Exhibit 38) that this monitoring is essential to the operation of this type of plant, which includes mixed media filtration, ion exchange and raw water blending, and which had a history of water quality problems. The modifications to the Floresta plant included a turbidometer and additional flow meters beyond the normal flow meters, but Mr. Ayers contended that the presence of this additional monitoring equipment did not imply that additional flows for which gauges had been installed should be measured. Standard operating practice in the industry would indicate to a operator exercising ordinary care in performing his duties that such measurements must be taken. The Amended Complaint further alleged in Count XIII that Respondents failed to monitor monthly for nitrate, chloride, pH, specific conductance, total dissolved solids and fecal coliform, as required by specific condition 13 of the Floresta water treatment plant construction permit (Department Exhibit 38). This allegation was not denied. Paul Ayers defended his conduct by contending that the school board was responsible for the failure to monitor, even though the Invitation to Bid states: "Special General Condition (A). Floresta Elementary (B). Perform all analysis on water and wastewater as required by current D.E.R. regulations" and "General Conditions (2). Contractor agrees to sub-contract laboratory analysis on samples in accordance with the analytical procedure acceptable to the Department of Environmental Regulations (sic)" Mr. Ayers' own bid response states "The charge for the above-described services per school will be, Floresta Elementary water $310, waste water, $210 per month to include all DER required lab analysis and labor service as described herein" (Department Exhibit 37). Standard operating practice requires that a water treatment plant operator be familiar with the terms of a plant's permit, and operate the system in compliance with the permit's terms. Even if the school board had an independent duty to assure compliance with the special monitoring requirements set out in Specific Condition 13 of the construction permit, Paul Ayers failed to comply with standard operating practice with regard to these monitoring requirements. The allegations of Count XIII have been proven by clear and convincing evidence. Failure to Supply Chlorine at Armadillo Warehouse The Amended Compliant alleged in Count XIV that Respondents failed to supply chlorine to the Armadillo warehouse water treatment plant after becoming aware that its on-site cholrine reservoir was empty, which caused an inadequate chlorine residual. The Department's evidence on this count included testimony from Francisco Perez, Donna Anderson, Wayne Dampier and Lowell Polk. Lowell Polk testified that he was given a list of plants to operate, which included the Armadillo plant. Despite his efforts during four or five visits to the plant, he "could not get satisfactory operation out of the [chlorine] feed pump." (Tr. Day 2 p. 141-142) As a result, "There was no chlorine in the water" (Tr. Day 2 pp. 141 and 149). Mr. Polk informed Ms. Devores about the inadequate chlorine situation, and she told him "don't worry about it." The plant was so small it did not fall under the jurisdiction of the Department, but was supervised by the local county public health unit. Respondents maintain that they had no contract to provide operator service, and that their only responsibility at Armadillo was "for a monthly bacteriological to be picked up" according to Ms. Devores (Tr. Day 2 p. 206), although Mr. Ayers believed it was a "quarterly sample" (Tr. Day 2 p. 258) for the public health unit. Despite the appearance of the Armadillo warehouse in Lowell Polk's list of plants to be serviced, the evidence about the contractual obligation of Respondents to provide any services to the Armadillo warehouse is too vague to support a finding that Respondents failed to perform services they had agreed or were required to perform for the public health unit. The Department has failed to prove the allegations of Count XIV of its Amended Complaint. Port St. Lucie Convalescent Center Count XV alleges that no operator certified in wastewater provided the minimum number of visits to the Port St. Lucie Convalescent Center wastewater treatment plant during the period from approximately June 1, 1989, through November 30, 1989. At the hearing, Lowell Polk, an operator certified in water only, testified that he operated the Port St. Lucie Convalescent Center plant during the period that he worked for Respondents, which was in 1988, not 1989. Mr. Polk's testimony does not support the allegations of Count XV, since that count specifically alleged misconduct by Respondents during 1989. Mr. Polk's testimony tends to corroborate, to some extent, the allegations of Count III, that uncertified operators were used by Respondents, and negates Respondents' assertions that they were unaware that any plants were being operated by uncertified operators. Mr. Polk told Judy Devores that Wayne Dampier asked him to operate a plant for which he was not certified, and Ms. Devores responded, "don't worry about it, just do it." (Tr. Day 2 p. 140) The Department has failed to prove the allegations of Count XV of its Amended Complaint. Costs The Department incurred costs and expenses in its investigation of the violations alleged in the amount of $15,512.60, which it seeks to recover in Count XVI. GENERAL OBSERVATIONS ABOUT THE EVIDENCE Respondents have attempted to impeach the credibility of Donna Anderson and Wayne Dampier as witnesses against them, alleging bias. They claim Ms. Anderson was fined because she had been embezzling funds from petty cash, and Mr. Dampier was personally responsible for improprieties alleged by the Department. Both witnesses, according to Respondents, are lying because they are disgruntled ex-employees. Danny Runyan, another ex-employee, admitted lying under oath during a deposition taken while he was still employed by Respondents, and explained that he lied under instructions from Respondents in order to keep his job. I have listened to the testimony, read the transcript, examined the documentary evidence and considered the various allegations of interest, motive and bias. I have observed the witnesses and evaluated their opportunity to have observed the matters they testified about, their ability to remember the facts, their ability to articulate details of their recollection, and any reason they had to shade or avoid the truth. Based on these observations and review of the record, I find that the evidence offered by Ms. Anderson, Mr. Dampier and Mr. Runyan are for the most part corroborated by testimony from John Canard, Kevin Prussing and Lowell Polk; by testimony from Department employees; and by exhibits offered by both parties. Mr. Dampier, Mr. Canard and Mr. Polk all admitted misconduct involving activities which could jeopardize their treatment plant operations certificates, with no evidence of any "grant of immunity" or agreement by the Department not to take enforcement action against their certifications. I simply do not believe that Ms. Anderson, Mr. Dampier and Mr. Runyan have perjured themselves for the purpose of revenge, or for any other reason. Many details in the testimony, while not alleged as to specific counts, and which do not in themselves support a finding of gross neglect in treatment plant operations, tend to corroborate the Department's specific allegations about false entries in required reports. For example, Donna Anderson said Respondents had instructed her to "stagger between 6.8 and 7.2" the pH values as she filled out the MORs; Wayne Dampier testified that Respondents told him "definitely not to take a raw sample because its too likely they will flunk" and to "make sure you got a good chlorine residual so that the samples would pass." During cross examination, Donna Anderson remembered Respondents asked her "to put in times and dates and stagger information of these particular logs . . . They had me make up these so called O & M logs that were missing from plants. They didn't have any." This is consistent with the statement made by Respondents in their written response to the Department's Notice of Noncompliance. In paragraph 3, of Department's Exhibit 15, Respondents state: "When the laws concerning the O & M logs were enforced, Paul Ayers Utilities immediately complied." It appears that Respondents "immediately complied" by having Donna Anderson manufacture O & M logs. Past questionable reports submitted by Respondents offer some slight corroboration of the charge of false labeling of samples. In 1986, the Department was notified by an HRS laboratory that samples submitted by Respondents were questionable, in that all samples, although labeled from different plants, had the same coliform bacteria counts. Respondents were advised at that time to take care in the handling of samples, just as they were warned in 1986 that removal of components of a treatment plant was considered by the Department to be "gross neglect in the performance of duties as a certified operator." The evidence of the fraud in the samples the Department charged in the Amended Compliant is itself highly persuasive even without this evidence. Statements, admissions and actions by Respondents have undermined their own credibility. For example: Respondents alleged that the nonexistent BOD and TSS analyses had been performed by a "moonlighting" lab technician in Okeechobee County who had been paid in cash. This entire line of testimony was not credible and damaged Respondent's credibility generally. Ms. Devores testified that the initials "J.D." which appear on the Zachary Taylor plant O & M log (Department Exhibit 33) for August 21 through 26, 1990, are in her handwriting, and that the initials "J.D." which appear on the same document on the dates July 17 and 18, 1990, are also in her handwriting, even though the handwritings are distinctly dissimilar, and even though Danny Runyan admitted that he had entered the latter set of initials. This further undermined the trustworthiness of Ms. Devores' testimony. Respondents tried to implicate Wayne Dampier in the allegations involving Floresta Elementary School, but the Floresta allegations all relate to a time period after Wayne Dampier's employment had terminated. Ms. Devores was unable to explain how her initials, "J.D." appeared in the Big O Water Treatment Plant at 10 a.m., on 7-11-90, and simultaneously at the Pier II WWTP, except that she "didn't have on my watch". Similarly, she was unable to explain how her initials show her to be simultaneously at Moose Lodge and Raven Parc on February 20, 1990. Respondents were unable to explain why they never noticed that their initials repeatedly were being used at plants they contend they did not operate. Ms. Devores kicked and threatened Ms. Anderson with bodily harm when she saw Anderson in the hall of the Palm Beach County Courthouse during the proceedings (Tr. Day 2 p. 96-99).
Recommendation Paul Ayers' and Judy Devores' water and wastewater treatment plant operator certifications referred to in Finding 1 should be permanently revoked. They should surrender those certificates to the Department within thirty (30) days of the effective date of the final order. Respondents should no longer accept employment in a capacity requiring water or wastewater treatment certification nor represent themselves as holding such certifications. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of May 1992. WILLIAM R. DORSEY, JR. 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 5th day of May 1992.
The Issue The issue to be determined in this case is whether the City of Tarpon Springs (“City”) is entitled to a industrial wastewater facility permit for its proposed discharge of demineralization concentrate into the Gulf of Mexico adjacent to Pasco County, Florida.
Findings Of Fact The Parties Henry Ross is a resident of Tarpon Springs. In his petition for hearing, he alleges that he is a recreational fisherman and a "consumer of fish taken from the area" where the proposed wastewater discharge would occur. He presented no evidence at the final hearing to prove these allegations. Neither the City or the Department stipulated to facts that would establish Ross's standing. The City of Tarpon Springs is a municipality in Pinellas County and the applicant for the industrial wastewater permit that is challenged by Ross. The Department is the agency charged by law with the duty, and granted the power, to regulate the discharge of pollutants into waters of the State. The Proposed Permit - General Due to the cost of obtaining potable water from Pinellas County Utilities, the City decided to look for another source of drinking water. In February 2004, an alternative water supply plan was developed by the City’s Office of Public Services which analyzed potable water supply options. It determined that the withdrawal and treatment of brackish groundwater represented the best option for the City. The proposed permit authorizes the City to discharge industrial wastewater into waters of the State. The wastewater is demineralization concentrate, which is produced when RO technology is used to remove salts from brackish water to convert it to potable water. The wastewater would be produced in conjunction with the operation of a not-yet-constructed WTP that would supply public drinking water to the residents of the City. The City must also obtain a consumptive use permit from the Southwest Florida Water Management District for the proposed withdrawal of groundwater. Whether the Town is entitled to a consumptive use permit is not at issue in this proceeding. The industrial wastewater permit would authorize a maximum daily discharge of 2.79 million gallons per day ("mgd") of RO concentrate. The initial operation of the WTP, however, is expected to discharge 1.05 mgd. The RO concentrate would be transported via a force main from the WTP in the City to an outfall in Pasco County. The outfall would discharge the wastewater into a canal which is already being used for the discharge of cooling water from Progress Energy Florida, Inc.’s Anclote Power Generation Facility. The outfall would be 50 feet north of the point in the canal where Progress Energy is required to demonstrate compliance with its own permitting requirements, so as not to interfere with Progress Energy's ability to demonstrate compliance. There is a floating barrier in the channel north of the proposed point of discharge, and a fence along the side of the canal, to prevent swimmers, boaters, and persons on foot from getting near the Progress Energy power plant. The floating barrier and fence would also prevent swimmers, boaters, or pedestrians from reaching the proposed discharge outfall and the area of the canal where the discharge will initially mix. After being discharged into the canal, the wastewater would become diluted and flow northward, out of the canal and into the open waters of the Gulf. The prevailing currents in area would most often force the wastewater south toward Pinellas County and the mouth of the Anclote River. To determine the characteristics of the wastewater, the City's consultants collected water from the three proposed well fields for the new WTP and ran the water through a small, pilot-scale RO unit to generate an RO concentrate that is representative of the proposed RO discharge. It was determined that eight constituents of the wastewater would likely be present in concentrations that would exceed applicable state water quality standards: aluminum, copper, iron, gross alpha (a radioactivity measurement), total radium, selenium, nickel, and zinc. The Mixing Zones The Department may authorize mixing zones in which a wastewater discharge is allowed to mix with the receiving waters. See Fla. Admin. Code R. 62-4.244. Within the mixing zone, certain minimum water quality criteria must be met. At the outer boundary of the mixing zone, the applicable state water quality standards must be met. In this case, the water quality standards for Class III marine waters are applicable. The City's consultants analyzed the wastewater, receiving waters, and other factors and used an analytical model to simulate a number of mixing scenarios. In cooperation with Department staff, a separate mixing zone was established for each of the eight constituents that are not expected to meet water quality standards at the outfall. The largest mixing zone, for copper, is 1,483.9 square meters. The smallest mixing zone, for nickel, is 0.7 square meters. The mixing zones are conservatively large to assure sufficient mixing. Under most conditions, the mixing is expected to occur in a smaller area. Toxicity Analysis Among the minimum criteria that must be met within a mixing zone is the requirement to avoid conditions that are acutely toxic. See Fla. Admin Code R. 62-302.500(1)(a). A wastewater discharge is tested for potential acute toxicity by exposing test organisms to the undiluted discharge and determining whether more than 50 percent of the organisms die within a specified time period. The test organisms, mysid shrimp and silverside minnow, are sensitive species. Therefore, when a discharge is not acutely toxic to these organisms, it can be reasonably presumed that the discharge would not harm the native organisms in the receiving waters. The acute toxicity test for the proposed RO concentrate indicated zero toxicity. The Department requested that the City also analyze the potential chronic toxicity of the proposed discharge. A wastewater discharge shows chronic toxicity if exposure to the discharge adversely affects the growth and weight of the test organisms. The tests performed on the representative discharge showed that the proposed discharge of RO concentrate would not create chronic toxicity in the mixing zones. Petitioner’s expert witness, Ann Ney, did not review the toxicity analyses or other water quality data that were submitted to the Department by the City. However, she expressed a general concern about a salty discharge that could create stratification in the canal with higher salinity at the bottom of the canal that might be hypoxic (little or no dissolved oxygen). The more persuasive evidence shows that salinity stratification, or a hypoxic condition, is unlikely to occur. The proposed permit requires the City to conduct quarterly chronic toxicity tests. The permit also requires the City to periodically test the water and sediments for any unexpected cumulative effects of the discharge. Evaluation of Disposal Options Florida Administrative Code Rule 62-620.625(6) requires that an applicant for a permit to discharge demineralization concentrate must investigate disposal options potentially available in the project area. The City evaluated blending the discharge concentrate with the City's re-use water irrigation program or with the City’s domestic wastewater discharge into the Anclote River. The RO concentrate was too salty for irrigation use and there was an inadequate volume of domestic wastewater available throughout the year. In addition, the Anclote River is an Outstanding Florida Water and, therefore, is afforded the highest water quality protection under Department rules. See Fla. Admin. Code R. 62-4.242(2). The City also looked at underground injection but that was economically unreasonable and there was concern about upward migration of the discharge. It was economically unreasonable to discharge the concentrate farther out into the Gulf. Anti-degradation Analysis For a proposed new discharge, a permit applicant must demonstrate that the use of another discharge location, land application, or recycling that would avoid the degradation of water quality is not economically and technologically reasonable. See Fla. Admin. Code R. 62-4.242(1)(d). As discussed above, the City investigated other disposal options, but they were not economically or technologically reasonable. An applicant for a permit authorizing a new discharge must demonstrate that any degradation is desirable under federal standards and under circumstances that are clearly in the public interest. See Fla. Admin. Code R. 62-302.300(17). In determining whether a proposed discharge is desirable under federal standards and under circumstances that are clearly in the public interest, the Department is required by Rule 62-4.242(1)(b) to consider the following factors: Whether the proposed project is important to and is beneficial to public health, safety or welfare (taking into account the policies set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. The proposed project is important to and is beneficial to public health, safety or welfare because it would provide drinking water for the public. In addition, the treatment and use of brackish groundwater converts otherwise unusable water into a valuable resource. The use of brackish water avoids the use of water in the surficial aquifer that is used by natural systems, such as wetlands. The Florida Legislature has found that the demineralization of brackish water is in the public interest, as expressed in Section 403.0882, Florida Statutes (2010): The legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water by-product treatment technology, sound waste by-product disposal methods, and regional solutions to water resources issues. The proposed discharge would not adversely affect conservation of fish and wildlife. Because the discharge is not toxic to sensitive test organisms provides reasonable assurance that the native fish and other aquatic life would not be adversely affected by the discharge. The only identified threatened or endangered species that frequents the canal waters is the endangered Florida Manatee. Manatees use the canal because of its relatively warm waters. Manatees come to the surface to breathe and they drink fresh water. There is no reason to expect that a manatee moving through the mixing zones would be adversely affected by the RO concentrate. The Florida Fish and Wildlife Conservation Commission, which has primary responsibility for the protection of endangered and threatened species, did not object to the proposed permit. Manatees and many other aquatic species use seagrasses as food or habitat. There are no seagrasses in the area of the canal into which the RO concentrate would be discharged, but there are dense seagrass beds nearby. The proposed discharge would have no effect on the seagrasses in the area. The proposed discharge would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Because the proposed discharge is non-toxic and would meet Class III water quality standards before reaching the closest areas where humans have access to the canal and Gulf waters, there is no reason to believe that the proposed discharge would be harmful to humans. The proposed discharge would not adversely affect recreational activities, such as swimming, boating, or fishing. Petitioner presented the testimony of two fishermen about fishing resources and water flow in the area, but no evidence was presented to show how the proposed discharge would reduce marine productivity. Petitioner contends that the proposed discharge would adversely affect the Pinellas County Aquatic Preserve. However, the aquatic preserve is two miles away. The proposed discharge would probably be undetectable at that distance. It would have no effect on the waters or other resources of the aquatic preserve. With regard to the requirement that the proposed discharge be consistent with an adopted and approved Surface Water Improvement and Management Plan for the area, there is no such plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department issue a final order determining that Petitioner lacks standing, and approving the issuance of the industrial wastewater facility permit to the City. DONE AND ENTERED this 16th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2010. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas J. Trask, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Henry Ross 1020 South Florida Avenue Tarpon Springs, Florida 34689 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in the case is whether the Petitioner is entitled to variances from the requirements of Rule 40D-0.27(2), Florida Administrative Code.
Findings Of Fact William E. Klein (Petitioner) owns two water wells, both in Tampa, Florida. Each water well serves three rental units which are also owned by the Petitioner. One well is located at 302 East North Bay Street. The second well is located at 4113 North Suwanee Street. Each water well is classified as a "limited use community public water system" as defined by Rule 10D-4.024(13)(b), Florida Administrative Code. The wells have been in existence for perhaps as long as eighty years. As of January 1, 1993, limited use community public water system wells must obtain permits to operate. Permits are issued by the Department of Health and Rehabilitative Services. The relevant permit requirements include water testing, submission of an application and a site plan, and payment of a fee. By February 23, 1996, the Department was aware of the Petitioner's wells and had provided notice of the permit requirements to the Petitioner. The Petitioner has met the water testing requirements, but has not submitted applications, site plans, or applicable fees related to these two wells. On May 30, 1996, the Petitioner filed applications for variances, seeks to be excused from submitting the applications, site plans and fees. On June 3, 1996, the Department denied the Petitioner's requests for variances. As grounds for the variance requests, the Petitioner cites financial hardship which will be imposed by payment of the fees. According to the stipulation filed by the parties, the application fee for each well is $110. Of the fee, $75 is retained by the state and $35 is retained by Hillsborough County, where the Petitioner's wells are located. The evidence fails to establish that the Petitioner is entitled to the requested variances. The evidence fails to establish that there are any costs related to submission of site plans. The Petitioner may prepare and submit site plans without assistance. The evidence fails to establish that there are any costs related to submission of a completed applications for permits. The evidence fails to establish that the total fee of $220 related to the issuance of well permits for six rental units will cause a financial hardship for the Petitioner. At most, the evidence indicates that the payment of the fee may reduce the Petitioner's profit from the rental units.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order denying the Petitioner's requests for the variances at issue in this case. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 William E. Klein, Pro Se Thomas Lewis, Representative 8716 Ruth Place Tampa, Florida 33604 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Martin Luther King Jr., Boulevard Tampa, Florida 33614
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue permit number 1C53-154132 to the applicant, IMC Fertilizer, Inc. (IMCF), for the modification of an existing industrial wastewater management system by constructing additional phosphogypsum storage capacity, or whether the permit should be denied as maintained by Manasota- 88 (Petitioner).
Findings Of Fact The Parties IMCF is a Delaware Corporation properly registered to conduct business in the State of Florida, which owns real property known as the New Wales Chemical Complex located in western Polk County, Florida, approximately 5 miles southwest of Mulberry, l mile south of State Road 640, and east of the Hillsborough-Polk County line. The New Wales Chemical Complex began operations in April, 1975, and consists of approximately 1600 acres which are located within a 17,000 acre tract owned by IMCF known as the "Kingsford Mine". Generally, the distance from the New Wales Complex boundary to the Kings ford Mine property boundary is from one to two miles. IMCF produces phosphoric acid and other phosphate-related products, including animal feed ingredients, and stores the by-product called phosphogypsum within a gypsum stack or pile. The Department is the administrative agency of the State of Florida having the power and duty to control and prohibit pollution of air and water in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. The Department has the authority to consider and act upon the permit application at issue in this case. Petitioner is a public interest environmental protection organization incorporated under the laws of the State of Florida as a not-for-profit corporation, is headquartered in Palmetto, Florida, and is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes. Petitioner has standing to maintain this action. The Application Process On or about August 31, 1988, IMCF filed with the Department an application for a permit to modify its industrial wastewater management system at the New Wales Complex by constructing additional phosphogypsum storage capacity. This permit application was assigned file number 1C53-154132. The Department requested additional information from IMCF concerning this initial application on or about September 29, 1988 and December 16, 1988, and IMCF timely responded on each occasion. On or about July 3, 1989, IMCF submitted an application supplement to the Department which substantially changed the nature and scope of its original application. The project proposed by IMCF for which it has sought the permit at issue in this proceeding is described and set forth in this supplement to IMCF's original application. The Department requested additional information concerning this application supplement on or about August 2, 1989, to which IMCF timely responded. On or about November 6, 1989, the Department filed its Intent to Issue permit number 1C53-154132, and thereafter, Petitioner timely instituted this action to challenge the issuance of this permit to IMCF. The Existing Operation At its New Wales Chemical Complex, IMCF operates sulfuric acid and phosphoric acid plants, granulated triple superphosphate and granulated ammonium phosphate plants, and a uranium recovery plant. The primary raw materials used at the New Wales Complex are sulfur and phosphate rock. Sulfur is used to produce sulfuric acid, which is then used to react with phosphate rock that has been mined by IMCF. This reaction produces phosphoric acid which is then further processed into fertilizer products and animal feed ingredients. Phosphogypsum or gypsum is a byproduct from the production of phosphoric acid. Approximately five tons of gypsum are produced for every ton of phosphoric acid which is produced. Gypsum is slurried and transported to an existing gypsum stack where it is allowed to settle in settling compartments. IMCF's existing gypsum stack is approximately 132 feet high, and it is reasonably estimated that it will reach its maximum useful height of 200 feet by May, 1992, at IMCF's current phosphoric acid production rate of 1.7 million tons per year, which results in approximately 8.5 million tons of gypsum per year. As the gypsum stack grows in height, the surface area on top of the stack that is available for gypsum deposition and management decreases, and at approximately 200 feet above ground surface there will be insufficient retention time for the slurried gypsum to settle out and to be used in continued construction of the stack. Therefore, when IMCF's existing stack reaches 200 feet in height, operations at the New Wales Complex will have to cease unless an alternative gypsum storage location is authorized through the issuance of the permit sought in this proceeding. The existing gypsum stack is unlined. In addition to the storage and management of gypsum, the existing gypsum stack at the New Wales Complex is also used to store rainfall that may fall on the stack and cooling pond. This storage capability allows IMCF to avoid discharging pond water to the surface waters of the State during heavy or extended rainfalls. During low rainfall periods, stored rainwater can be used to supplement pond water, and thereby reduce IMCF's need to pump fresh water from the aquifer to meet its cooling and scrubbing needs. Additionally, during the hot summer months, the area on top of the stack is also used for cooling purposes. A cooling pond approximately 247 acres in size is located to the immediate south of the existing stack, with additional cooling channels encircling the stack on its remaining three sides. This existing, unlined cooling system encompasses a total of approximately 281 acres, and recirculates approximately 150,000 to 170,000 gallons of water per minute through this entire cooling system and back to IMCF's production plants for reuse. Approximately twelve uncapped recharge wells, each eight inches in diameter, were drilled in the area under the cooling pond during mining operations. These recharge wells were broken off during mining operations, and it is estimated that these wells have been filled to the top of the confining layer above the Floridan aquifer by sand and debris. The production of fertilizers generates heat which must be dissipated through cooling, and gasses which must be cleaned by "scrubbing" them with water. IMCF's cooling system at the New Wales Complex carries out these cooling and scrubbing functions. Pond water is used to transport gypsum in slurry from the phosphoric acid plant to the top of the gypsum stack, where it is directed to one of three settling compartments on the top of the stack. Settled gypsum is periodically dredged out, and used to build up the diked area around the edges of the stack. The slurry water is then decanted to the perimeter ditch and returned to circulation. Waters collected at the New Wales Complex which do not come in contact with fertilizer products or raw materials are collected on the site and directed to an impoundment area referred to as "A-11" for recirculation and reuse in the plant. Excess noncontact water may be periodically released to the Kings ford Mine recirculating system during heavy or extended rainfall, and is managed separately from pond water. A 90 acre emergency holding pond is located to the west of the cooling pond and to the south of the production facility. However, IMCF has never had to discharge excess pond water into this emergency area. This emergency holding pond is unlined. IMCF's existing facility is a zero discharge to surface water facility. Other phosphate companies discharge pond waters to surface waters after treatment with calcium oxide or calcium carbonate. This existing facility can also store, without surface water discharge, rainfall and other waters in excess of Departmental and federal effluent guidelines Because IMCF's existing, unlined gypsum stack and cooling pond system release some seepage to the ground water, on or about September 8, 1989, IMCF and the Department executed a Consent Agreement in OGC Case Number 89-0657 pertaining to the operation of the existing gypsum stack and cooling pond, which states in pertinent part: Cooling pond water on the Site contains concen- trations of various constituents in excess of primary drinking water standards. (Finding 4) Contaminant concentrations in groundwater samples collected from the surficial aquifer and the uppermost segment of the intermediate aquifer system at certain locations on the Site are elevated with respect to unaffected groundwater quality. Monitoring well SA-4 . . . is located approximately 400 feet from the cooling pond channel and has indicated concentration levels of certain constituents in excess of primary and secondary drinking water standards . . . Analyses from monitoring well SA-6, located 1600 feet downgradient from well SA-4, have recently indicated sulfate and TDS concentra- tion levels slightly exceeding secondary drinking water standards. Therefore, the vertical and horizontal extent of groundwater contamination and the rate and direction of contaminant transport in groundwater require additional evaluation. (Finding 5) Some evidence indicates elevated contaminant concentrations above background levels in groundwater samples collected from one of seven monitoring wells that draw water from the lower segment of the intermediate aquifer system in a location adjacent to and down- gradient from the cooling pond. Therefore, additional evaluation of the potential impact of abandoned recharge wells underlying the cooling pond is required. (Finding 6) IMCF has collected ground water quality data pursuant to the requirements of Ground Water Monitoring Plan Permit No. MP53-75181, currently in effect, as well as data in connection with this expansion project. This data indicates that two monitoring wells have been impacted by seepage from the existing gypsum stack. Well No. NWC-2-S2A, located approximately 400 feet to the west of the edge of the gypsum stack, contains ground water with elevated levels of sodium in excess of concentrations set forth in applicable ground water quality rules, and has recorded sulfate levels which exceed standards. Well No. SA-4, located approximately 700 feet west of the existing stack, reflects concentrations of sodium, gross alpha, and radium-226 in excess of concentration limits set forth in applicable rules, and has also recorded exceedences for sulfate, total dissolved solids and iron. These two wells are located within the New Wales Complex, and draw water from the upper portion of the intermediate aquifer, probably being impacted by seepage from the stack westward through this zone. In addition, data collected from IMCF monitoring well NWC-5-I4A, located immediately west of, and adjacent to, the cooling pond, show elevated levels of temporary dissolved solids, arsenic, sulfate and sodium above background levels, although the sodium concentrations do not exceed the maximum concentration limits set forth in applicable Departmental ground water quality standards. This well draws water from the major producing zone of the intermediate aquifer system. Finally, water quality impacts are shown as a result of analysis of ground water samples taken from three other wells at the New Wales Complex, wells NWC-2-S1 and NWC-2-SIA which draw water from the surficial aquifer, and well SA-6 which draws water from the uppermost portion of the intermediate aquifer system. However, based upon the evidence and analysis presented by Dr. John Garlanger, who was accepted as an expert in ground water quality impact assessment, and notwithstanding the contrary opinion expressed by Steven R. Boyes, who was accepted as an expert in hydrogeology, it is likely that these impacts come from a source other than the gypsum stack. Based in part upon the findings set forth above, the Consent Agreement provides that IMCF will implement a series of stated corrective actions, including additional monitoring activities, and that IMCF will evaluate pertinent primary and secondary drinking water standard constituents in all potentially affected aquifers within, and/or beyond, its zone of discharge. Once this is done, IMCF may be required to evaluate various remedial action alternatives, and to ultimately implement a remedial action plan. The Consent Agreement also authorizes IMCF to install a slurry wall to the north and northeast of the existing stack to limit any seepage in that area. IMCF has committed to the Department that if ground water quality monitoring indicates significant contamination is approaching the limits of the IMCF production plant, it will also install a slurry wall along the western edge of the plant in order to intercept any such contamination in the surficial and upper intermediate aquifer systems and contain it within IMCF's property. Dr. Garlanger performed a modeling analysis concerning the impact of the existing cooling pond and stack upon the water quality of the major producing zone of the intermediate or Floridan aquifer, given that these existing facilities will not be closed, but will remain in use in connection with the new stack for an additional twenty years beyond 1992. Based upon that analysis, it is found that any seepage through the upper confining unit from either the existing stack or pond would not cause a violation of primary or secondary drinking water quality standards. In addition, even if the twelve recharge wells underlying the cooling pond area were each leaking at the rate of one gallon per minute, which was shown to be an overestimate of any reasonable leakage rate, Dr. Garlanger concluded that insignificant impacts would result in the major producing zone of the intermediate and Floridan aquifer systems. The precise vertical or downward extent of the zone of discharge has not yet been determined for the New Wales Complex, although a zone of discharge horizontally to the IMCF property line has been established. However, the Department has reasonably concluded that the water quality impacts at the site resulting from the existing stack and cooling pond, referred to above, are not violations of IMCF's current permit, or of applicable rules and standards. The Department does not currently have sufficient information to determine what, if any, remedial action would be appropriate for impacts resulting from the existing stack and cooling pond, but this information will be developed pursuant to the Consent Agreement. The Department has not ruled out any eventual remedial action alternative, including closure of the existing gypsum stack. The Proposed Project IMCF proposes to construct an additional 415 acres of gypsum storage capacity, including permimeter ditching, in a total project area of 520 acres which will be located immediately south of, and adjacent to, the existing cooling pond that is used in connection with the existing gypsum stack or pile. It is reasonably estimated that this new stack will be in operation for twenty years. A 60-mil high density polyethylene liner is to be installed over the entire base area, and the upstream slope of the perimeter dikes. The proposed liner will be chemically and physically compatible with conditions that will be encountered in the expanded gypsum stack area, and will be of sufficient strength to prevent failure during installation and operation. Textured liner material will be used around the outer edges of the stack area underlying the projected stack slope, while smooth material will be used under the remainder of the stack. The textured material provides an additional safety factor to prevent slope stability failure. IMCF's proposed gypsum stack is designed with a factor of safety significantly greater than that which is provided in other stack projects. The liner material will be delivered to the site in sheets which will be rolled out on site, overlapped, and bonded with adjacent sheets using an extrusion-fusion welding process. IMCF will follow an extensive quality assurance and control program to insure that the contractor installing the liner follows all required procedures, including inspections and evaluations, random destructive testing, and vacuum testing of every inch of liner welds. Three concentric rings of perimeter gravel drains with polyethyline collector pipes will be installed over the liner and beneath the projected slope of the gypsum stack in order to reduce the hydraulic head on the liner and improve the stability of the stack. The materials used in the drain system will be compatible with the environment which they will encounter in the gypsum stack. IMCF proposes to separate the existing cooling pond and the proposed new gypsum stack with a 2.5 foot thick soil-bentonite slurry wall constructed along and within the entire length of the northern perimeter dike of the expansion area, and keyed approximately 30 feet into the underlying bedrock- bedclay complex. This slurry wall will provide a barrier to lateral seepage from the existing cooling pond into the expansion area, and will effectively function as a vertical liner. Materials used to construct the slurry wall will not be adversely impacted by seepage from the cooling pond. Two culverts for routing the seepage, runoff and decant water from the gypsum stack perimeter collection ditch into the existing cooling pond are to be installed. An additional syphon spillway is to be constructed at the southwest corner of the existing cooling pond and directed into the emergency holding pond. There is no proposal to cap the twelve uncapped recharge wells located under the existing cooling pond. The existing cooling and emergency holding pond will remain in operation with the new proposed gypsum stack. Gypsum will be slurried by pipeline from the phosphoric acid plant to the proposed new stack after its completion, where it will be managed in a manner similar to that practiced on the currently operating stack. The transport water will be returned to the cooling pond system for recirculation. IMCF proposes to use the top of the existing stack for the storage of rainfall and for cooling purposes during times of excessive heat. The geology of the gypsum stack expansion project site is appropriate and suitable for this proposed use, as established through an evaluation of regional and site-specific information, including prospecting data collected by IMCF prior to mining this area and geophysical logging information from wells that have been installed in the area. Site-specific geological tests performed by IMCF included the drilling and evaluation of five core holes around the area of the expansion project, and evaluation of the geological conditions encountered during the drilling of thirty-one ground water monitoring-wells installed in the vicinity of the proposed project area, and an evaluation of soil borings taken from within the project site. Surface depressions and lineaments shown on pre-mining aerial photographs of the area were also evaluated. The physical evaluation and examination of the former locations of surface depressions was conducted, as was a sinkhole probability assessment. The hydrogeology underlying the site of the proposed expansion area does not contain any features which would adversely affect the siting of the expanded stack in this proposed location. There are three major aquifer systems underlying the proposed project area, including the surficial, intermediate and Floridan aquifer system. The surficial aquifer, extending from the top of the water table to a depth of approximately 60 feet, contains overburden and sands that have replaced the original "matrix" formation of phosphate ore which has been mined. The intermediate aquifer system underlies the surficial aquifer, with its upper portion having very low permeability, extending approximately 125 feet in thickness, and containing some water bearing zones which are not laterally continuous in the project area. The major producing zone, consisting of sandy limestone material, is located in the lower portion of the intermediate aquifer. There is a confining unit approximately ten feet in thickness, known as the "Tampa clay", at the very bottom of the intermediate aquifer, separating it from the Floridan aquifer. The Floridan aquifer system is a highly productive limestone aquifer, several hundred feet in thickness, that is the primary source of municipal drinking water and industrial water supplies in the area. The preparation of the site will begin with the removal of various materials deposited in the area during mining operations which have already taken place, and the diversion of surface water from the area. The site will be dewatered by allowing water to flow from the site into other mined-out portions of the Kingsford Mine further to the south. This dewatering process will not discharge any water to the waters of the State. After dewatering, the site will be graded to remove any materials that could potentially puncture the liner. The presence of existing wells in the project site will also be addressed by IMCF as part of its site preparation activities. Thirty-eight wells were previously installed in the project area, thirty-three of which were recharge wells that were used to drain water from the surficial aquifer system down to lower aquifer systems prior to mining. Twenty of these wells have been physically located, and IMCF will insure that these wells are abandoned and plugged in accordance with currently applicable regulatory requirements. The remaining eighteen wells in the project area cannot be physically located and plugged because they have been destroyed or otherwise impacted by mining operations. IMCF will install circular concrete caps, three feet in thickness and of varying diameters, over the former locations of these wells which have been determined using an analysis and evaluation of historical surveys and aerial photography, as well as computer modeling. It was established through the testimony of Richard Fountain and Dr. Nadim Fuleihan, who were accepted as experts in geological evaluation and consultation, and civil and geotechnical engineering, respectively, that these caps will reliably encompass the locations of these eighteen former wells, and will, further, maintain the structural integrity and stability of the lined gypsum stack. IMCF has provided reasonable assurances to the Department that the construction and operation of the proposed additional gypsum stack will not result in discharges that will cause pollution in violation of statutory provisions or Departmental rules or standards designed to protect surface and ground water quality. As discussed elsewhere herein, IMCF will include an extensive groundwater quality containment/protection system in this project, the essential elements of which include the slurry wall, synthetic liner and underdrain system. Surface waters will not be adversely affected by dewatering of the project area prior to construction, nor by rainfall that strikes disturbed areas during construction due to the diversion of such waters into the Kings ford Mine water recirculation system, thereby preventing direct discharge to surface waters of the State. Construction of the new gypsum stack will increase the area at the New Wales Complex that will catch rainfall and direct it towards the pond water recirculation system. However, based on the evidence presented by Dr. Fuleihan, even under extreme rainfall conditions there is a very low probability that IMCF would have to discharge pond water from the emergency holding pond, and even under this unlikely condition, IMCF has the capability of implementing a program to treat and reuse pond water in its production processes, and will not have to discharge pond water to surface waters of the State. The proposed one layer synthetic liner which IMCF will install with the new stack can reasonably be expected to prevent pollution of the ground water which would violate applicable statutory provisions, rules or standards. It was established through the testimony and evidence presented on behalf of IMCF, and particularly the evidence presented by Dr. Fuleihan, that the proposed liner to be used by IMCF is at least five times more protective (less permeable) than clay liners, and eight times more protective (less permeable) than the design liner which would be required by the Department's policy statement concerning the lining of gypsum stack expansion projects. This project will essentially involve zero discharge to ground water due to the extremely low permeability of the liner material. Based upon the testimony of Dr. Garlanger, any impacts reasonably expected to occur through liner seepage and defects would not result in an exceedence of applicable primary drinking water quality standards at the base of the surficial aquifer underlying the gypsum stack expansion area. No impacts at all were projected at any point lateral to the edge of the gypsum stack expansion area. In accordance with the terms of the permit the Department proposes to issue, IMCF will be required to monitor ground water quality in order to demonstrate compliance with all applicable standards. IMCF has provided reasonable assurance that it can locate and cap all uncapped recharge wells in the project area, and has proposed a method for capping such wells which is appropriate, and which can reasonably be expected to be effective in preventing the intrusion of pollutants into the ground water through these presently uncapped recharge wells.
Recommendation Based upon the foregoing, it is recommended that Department enter a Final Order approving IMCF's permit application and issuing permit number 1C53-154132. DONE AND ENTERED this 23rd day of May, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's Proposed Findings of Fact: 1-5 Preliminary matters which are not proposed findings. Adopted in Findings 4, 6, 8, 24-28. Adopted in Findings 3, 8. Statement of issues and not a proposed finding. 9-10 Adopted in Finding 11, but otherwise Rejected as unnecessary and immaterial. Adopted in Finding 15. Rejected as immaterial and unnecessary. 14-15 Adopted in Finding 16. Adopted in Findings 1, 11. Adopted in Finding 11, but otherwise Rejected as immaterial and unnecessary. Adopted in Findings 13, 34. Adopted in Finding 13. Rejected in Finding 22 and otherwise as not based on competent substantial evidence. Adopted in Finding 29. 22-23 Adopted and Rejected in part in Findings 34, 37. 24-31 Adopted and Rejected in part in Findings 18-20, and otherwise Rejected as immaterial and unnecessary. 32 Rejected as not based on competent substantial evidence. 33-34 Adopted in Finding 23, but otherwise Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Finding 19, but Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Findings 24, 29, 30. Rejected as irrelevant. 38-39 Adopted in Finding 11. Adopted in Finding 24, but otherwise Rejected as immaterial and unnecessary. Adopted in Finding 29, but otherwise Rejected as speculative and not based on competent substantial evidence. Rejected in Finding 36, and otherwise as immaterial. Adopted in Finding 36, but otherwise Rejected as immaterial and as a conclusion of law. Rejected in Finding 35. Rejected as not based on competent substantial evidence, and without citation to the record as required by Rule 221-6.031(3). Rejected in Findings 21-23 and 35-37. Rejected as not based on competent substantial evidence and as a conclusion of law. Adopted in Finding 17. Adopted in Findings 21 and 23, but otherwise Rejected as without citation to the record. Rejected as not based on competent substantial evidence and without citation to the record. Rejected as a conclusion of law. 52-53 Rejected as immaterial since the circumstances of the Gardinier permit differ significantly from the facts in this case. 54 Rejected as not based on competent substantial evidence and as immaterial. There was no explication of any nonrule policy which requires closure of an existing stack. 55-56 Rejected as immaterial. 57-58 Rejected as not based on competent substantial evidence and as a conclusion of law. 59-60 Rejected as a conclusion of law and without citation to the record. Rejected as immaterial and not based on competent substantial evidence. Rejected as simply argument rather than a finding of fact. Rejected as an incorrect conclusion of law. 64-68 Rejected as immaterial, not based on competent substantial evidence, and without citation to the record. Rulings on the Department's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4-5 Adopted in Findings 13, 14. 6-7 Adopted in Finding 12. 8 Adopted in Findings 24, 30. 9 Adopted in Finding 31. 10 Adopted in Finding 32. 11 Adopted in Finding 33. 12-13 Adopted in Finding 34. 14 Adopted in Finding 35. 15 Adopted in Finding 28. 16-17 Adopted in Finding 25. 18 Adopted in Finding 26. 19 Adopted in Finding 27. 20-22 Adopted in Finding 36. Adopted in Findings 14, 35. Adopted in Findings 1, 11, 13, 17. Adopted in Finding 18. Adopted in Finding 19. Adopted in Finding 20. 28-29 Adopted in Finding 21. 30 Adopted in Finding 22. 31-32 Adopted in Finding 23. Rulings on IMCF's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4 Adopted in Finding 13, 14. 5-6 Adopted in Finding 12. 7 8 Adopted in immaterial. Adopted in Finding Finding 4, but otherwise 6. Rejected as 9 Adopted in Finding 8. 10 Adopted in Findings 24, 30. 11 Adopted in Finding 31. 12 Adopted in Finding 32. 13 Adopted in Finding 33. 14-18 Adopted in Finding 34. 19 Adopted in Finding 35. 20 Adopted in Finding 28. 21-22 Adopted in Finding 25. 23 Adopted in Finding 26. 24 Adopted in Finding 27. 25-27 Adopted in Finding 36. 28-29 Adopted in Findings 14, 35. 30 Adopted in Findings 35, 36. 31 Adopted in Findings 1, 11, 13, 17. 32 Adopted in Finding 18. 33 Adopted in Finding 19. 34 Adopted in Finding 20. 35-36 Adopted in Finding 21. 37 Adopted in Finding 22. 38-39 Adopted in Finding 23. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, FL 33701 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert L. Rhodes, Jr., Esquire Lynda L. Goodgame, Esquire P. O. Drawer 810 Tallahassee, FL 32302 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2012.
