The Issue The issue for consideration in this case is whether the Respondent, Hi Hat Cattle and Grove, should be issued water use permit 204387.03, to withdraw groundwater from the wells on its property, and if so, in what amount and under what conditions.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for the permitting of consumptive water use within its area of geographical jurisdiction. The Respondent, Hi Hat, is a family owned farming and ranching operation in eastern Sarasota County with water wells on its property. The Intervenor, City of Sarasota, is a municipality in Sarasota County which operates wells in the general area of those operated by Hi Hat, and which has an agreement with Hi Hat for the latter's use of treated wastewater pumped from the city's treatment plant to Hi Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and resident of Sarasota County whose property is located near the Hi Hat Ranch, and whose potable water is drawn from a well on his property which utilizes both the surficial and intermediate aquifers which are penetrated by the wells on Hi Hat Ranch. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove, the family owned business which operates it, and an additional 3,227 acres leased from the City of Sarasota. Agricultural operations, including citrus farming, truck farming, sod farming, and grazing have been conducted on the ranch since the mid 1940's. In February, 1990, Hi Hat applied to the District for a permit to withdraw and use water from some 14 wells located on its property. It requested an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate of 32, 668,000 gpd. Upon receipt by the District, the application was assigned a number, (204387.03), and was submitted for evaluation by the District staff for conformity with applicable District rules and policies. When the staff evaluation was completed, the District issued a staff report and proposed staff agency action in which it indicated its intention to issue a permit authorizing water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd. In conducting its evaluation, the District staff relied upon the District's Basis of Review For Water Use Permit Applications which contains within it the provision for use of a "water use model" in assessing the need and appropriateness of water withdrawal amounts. This model, known as the Blaney- Criddle Model considers numerous factors in the evaluation, including rainfall, soil characteristics, irrigation methods used, and proposed crop types, all in an effort to determine a reasonable estimate of the applicant's supplemental water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a Hydrologist III employed by the District, and an expert in hydrology, who has, over the years, reviewed between 350 and 400 permit applications, of which approximately 90 percent have been for agriculture. She is, therefore, quite familiar with the specifics of agricultural water use needs. Her evaluation of Hi Hat's application was done in the same manner as the others she has done and utilized the same tests, measurements and factors for consideration in arriving at her conclusion. In its application, a renewal with modification sought to increase average annual quantities due to a change in crop plans, Hi Hat indicated that its criteria for water use was based on certain agricultural uses and application rates. These included: low volume under tree spray irrigation of 778 acres of citrus at an application rate of 17.2 inches/year plus one inch/year for frost and freeze protection. open ditch irrigation of 135 acres of sod at an application rate of 30 inches/year. open ditch irrigation of 1,367 acres of improved pasture at an average application rate of 26.6 inches/year. overhead spray irrigation of 1,200 acres of improved pasture at an application rate of 20.3 inches/year. open ditch irrigation of 110 acres of spring peppers at an application rate of 30.0 inches/crop, and open ditch irrigation of 110 acres of fall peppers at an application rate of 45.2 inches/crop. Applicant also stipulated that the peak monthly quantities that it requested would be utilized for pasture, sod and citrus irrigation during the month of May. The proposed maximum quantities were for frost and freeze protection of citrus only. In January, 1989, Hi Hat entered into a contract with the City of Sarasota under which the City was obligated to deliver reclaimed water from its wastewater treatment plant to a "header" located on the ranch which thereafter distributes the water through pipes to "turnouts" located at various high points on the property. From these, the water is then discharged into a system of ridges and furrows for distribution of the water across the needed area. The reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The Contract provides for minimum and maximum amounts of water to be delivered as well as for water quality standards which must be met. In periods of adequate rainfall, when irrigation is not required, any treated wastewater which is not needed is stored in a 185 million gallon holding pond on City property located adjacent to the ranch. When needed, water can be fed into the wastewater distribution system described above from the holding pond. This reclaimed water, whether from the pond or direct from the header, can also be utilized to irrigate citrus crops, but this requires a filter system which has not yet been able to operate properly. Therefore, no reclaimed water has yet to be utilized for citrus irrigation on the ranch. At an average annual flow of 6.2 million gallons per day, the pond has the capacity to hold enough treated water for almost 30 days. Not all wells on Hi Hat Ranch are active wells. Several of the wells are classified as standby wells which are intended to be used only to back up the reclaimed water delivery system and are located, normally, beside the "turnouts." In the event the reclaimed water is not available from the city, the standby wells can be utilized to provide water to the ridge and furrow system used to irrigate pasture land. The standby wells are numbers 1, 6, 7, 11, 13, 14, and 15. Well number 5, also identified as a standby well in the staff report and in the draft permit was mistakenly so identified. The draft permit contains several special conditions which impact on the drawing of water under the terms of the permit. Significant among these is Special Condition 33 which prohibits the withdrawal of water from any of the standby wells unless the reclaimed water supply from the city is interrupted. Special Condition 27 requires the installation of a flow meter on any standby well that becomes active as a result of permanent discontinuance of the reclaimed water supply. With regard to flow meters, Special Condition 22 requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated this was in error and has recommended that the standby wells be deleted from that Special Condition. When that is done, only those wells actively producing water on a regular basis would require the installation of flow meters. In its analysis of the application for permit, the District staff considered several factors pertinent to the impact the well would have on the water supply in the area and its effect on other users. These factors include hydrologic impacts, well condition, the history of water use at the ranch, the reliability of the reclaimed water system and its ability to provide a uniform source, and the city's water reuse policy. Addressing each individually, and starting with the hydrologic impact of the withdrawal of the requested amounts, the District considered the nature of the existing wells and how they are constructed and maintained. The District assumed, because the data regarding the construction of the existing wells was incomplete and insufficient to properly disclose the status of casing on each well, that they were shallow cased. As a result, the calculations incorporating this assumption indicate a situation that would occur in its most aggravated form. The parties agreed that Hi Hat's wells are shallow cased and probably go no deeper than 90 feet. To determine, as much as possible, the projected drawdowns in the surficial and intermediate aquifers that might be expected if Hi Hat withdrew the amounts of water proposed, the District utilized the "MODFLOW" computer model which factors in simultaneous peak withdrawals from all 14 of the wells along with a 90 day no rainfall drought condition. This, too, contributes to a worst case scenario, and the resultant figures are considered to be conservative estimates of the hydrologic impact of the water withdrawal. Notwithstanding, the application of this computer model resulted in the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's property located approximately one half mile from the ranch border, would be no more than .055 feet. Since normal fluctuations in the surficial aquifer during the course of the year can be as much as 6 feet, the projected drawdown as a result of Hi Hat's withdrawals was considered insignificant. Applying the same assumptions and utilizing the same computer model as it relates to the intermediate aquifer resulted in an indication of a drawdown of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in the intermediate aquifer can range from 15 to 20 feet normally, the District considers that any reduction of less than five feet in the intermediate aquifer is insignificant. The permit held by Hi hat currently allows for the withdrawal of more water than would be withdrawn under the proposed permit as conditioned and is consistent with the proposed reduction in allowable withdrawals. Considering that factor, as well as the prohibition against withdrawals from standby wells as long as reclaimed water is available, the actual impact of the water withdrawals consistent with the proposed permit would be substantially less than the computed prediction which includes production from all wells. Drawdown contours are defined across the entire effected area. One of the levels is a 4 foot contour, and when a computer simulation indicates that the 4 foot contour includes a withdrawal previously or otherwise permitted, the District will generally conduct a cumulative impact analysis. In this case, however, since there was only one golf course well within the area circumscribed by the 4 foot contour line, and since this withdrawal was too small to have effected an evaluation, it was not done. The condition of the wells on the Hi Hat Ranch has some bearing on whether or not the application for additional withdrawal of water should be granted. These wells are almost 30 years old, having been drilled in the 1960's. As a result, there is little information available regarding their construction detail. This is not necessarily unusual for agricultural wells, and there is evidence that there are many similar wells in use within the District. The reason for this is that at the time the wells were drilled, information regarding their depth, casing and other matters were not required to be kept or reported. However, there is no indication the wells are in any way violative of well construction criteria and their use has been authorized continuously since 1977. When he prepared Hi Hat's application, Mr. Turner included much the same information regarding the wells as pertains as to depth and diameter which he had previously submitted in earlier applications and which had been accepted. In each case, casing depths had been reported as unknown. Notwithstanding the information contained in some old well logs relative to only a few of Hi Hat's wells, this information is in no way definitive and it is difficult to describe anything specific with the majority of these wells. Nonetheless, as already found, it is stipulated that most are approximately 90 feet deep. It is reasonable to assume that the existing wells, however, are cased only to a shallow depth, and that in many cases, the existing casings have corroded away, either totally or in part. This can cause an intermixing of water from the separate aquifers, but whether this is in fact happening depends upon factors specific to that particular well. Petitioner did not present any evidence to show that as a result of the condition of Hi Hat's wells, any degradation is occurring in the more potable, surficial aquifer as a result of intermixing with water from the intermediate aquifer on or around the Hi Hat Ranch. In Ms. Jackson's opinion, and there appears to be no evidence to contradict it, the amount of drawdown which would occur as a result of maximum pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water from the Floridan aquifer to percolate upward (upcone) into the better quality water of the two upper aquifers even during drought conditions. By the same token, there is no evidence that drawdown would encourage or permit salt water intrusion. Petitioner attempted to show by the records kept on the various Hi Hat wells that many of them have been abandoned and are no longer operative and should not be allowed to fall within the parameters of this permit. He testified clearly that over the years, the level of water in his potable water well has lowered and presumed that this was the result of increased water usage by other entities which draw from the aquifer into which his well is sunk. Water level, however, depends upon numerous factors, of which usage is only one. Others include recharging of the aquifer and the amount of rainfall and other recharge sources not only in the immediate area but across the large area which feeds the aquifer. Mr. Bishop did not present any evidence showing a causal connection between the lowering of the water in his well, or the degradation in water quality he claims to have experienced, and either the drawdown caused by Hi Hat's operation or by aquifer intermixing. He indicated, and it is not disputed, that within the past year, he has had to take measures to improve the water quality in his potable well, but, again, he has not presented any evidence to show this was caused by Hi Hat's ground water withdrawals. In its long range planning, the District intends to implement a program to rehabilitate old wells, and when that program is implemented, almost every agricultural well within the District may require recasing or redrilling. This program will not be implemented for several years, however. In an effort, however, to insure that all reasonable precautions are taken to see that approval of any petition for withdrawal does not have an unacceptable adverse impact on the water needs of the surrounding community, in its analysis of this application, and in all cases, the District makes certain assumptions when adequate empirical data is not available. In this case, pertaining to the unavailability of information regarding Hi Hat's wells, the District assumed that all wells were shallow cased, and this placed the application in the worst possible light. Shallow cased wells allow more upconing and aquifer intermixing. Nonetheless, the amount of water permitted to Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's use of additional water as a result of a possible change to their permitted quantities. However, to compensate for this, the District has also included a special condition, (#26), which requires Hi Hat to log all 14 of its wells within the term of the permit, (7 years), which will require at least 2 wells be done each year. The cost of that action will be between $800 and $2500 per well. Another condition, (#31), requires Hi Hat to look into any complaint from adjacent property owners regarding adverse impacts due to water withdrawal, to report the results of its inquiry to the District, and to mitigate, as much as possible, all adverse impacts due to its withdrawal. Mr. Bishop claimed, and introduced evidence purporting to demonstrate, that many of the wells on the Hi Hat Ranch, which are covered by the permit applied for here, are no longer in use and have been abandoned. In response, Mr. Turner, who has been actively engaged in the ranch's operations for at least the past four years, indicates from his personal knowledge, that all 14 wells included in the permit applied for have been operated within the past two years, and all are capable of producing water. It is so found. Not all wells, however, have been operated at all times. Crop rotation and a varying need for groundwater has resulted in some wells not being used at some times. This is, of course, commonplace in agriculture and to be expected as a result of crop planning programs. Admittedly, an accurate figure for the amount of water which has been withdrawn from the 14 wells cannot be established because these wells do not have, and were not required to have, flow meters. Two of the wells were fitted with hour meters in January, 1989, but because the capacity of the pumps on those wells is variable, a precise estimate of volume pumped cannot be determined. The meters measured only the number of hours the pumps were in operation and not the amount of water passed through the pumps. Evidence was presented, however, to show that wells have been utilized at the ranch since the 1960's, and in 1977, some 14 years ago, following District implementation of a consumptive water use permit program, the ranch first applied for water withdrawal permits. These permits have been renewed as required and all water usage since the implementation of the program has been permitted. Turning to the reclaimed water supply, the delivery system, incorporating a program to pump reclaimed water from the treatment plant all the way back out to the ranch site, is subject to material failure and operator error, and either one can occur at any number of places along the system route. Each could result in interruption of the delivery of the reclaimed water to the ranch. The system is far more complex than would be the use of on-site wells for delivery of ground water. One two week shutdown in the system was occasioned by a major pipe failure as a result of pressure building up in the pipes. Were it not for the fact that a contractor was already at the ranch with replacement parts on hand to effect expeditious repair of the system, the shutdown could have lasted considerably longer than it did. This is not the only interruption, however. Several main line leaks and valve problems have caused the system to be shut down on several occasions for short periods of time. The filter system required for the water destined for the citrus area is problematical, and so far this area of the ranch has not received any reclaimed water in the 10 months the system has been in operation. Mr. Bishop argues that the wet weather holding pond is a solution to the reliability problems with the pipe line, but the pond has had problems of its own. Sand in the water, which comes from the holding pond, has been the primary difficulty in the filter system for the citrus area, and algae growth in that pond has the potential to create other filter problems. Delivery of the water from the pond is not accomplished by a gravity system, but instead, requires the use of pumps powered by an electric motor. In the event of a power failure, this source would be unavailable. Discounting all of the above, however, and assuming, arguendo, that all systems were in top operating condition, the fact remains that the delivery system from the pond to the distribution system is not adequate to supply the amount of water that would be necessary to have an effective freeze protection program. In any case, the reclaimed water supply is not the panacea for all water shortage problems experienced at Hi Hat Ranch. In the first place, the quality of the reclaimed water is generally lower than that of the groundwater which would come from wells on the ranch. Also, the City's treatment process does not remove from the water all the pollutants that are of concern to the farm operators. For one thing, total dissolved solids in the reclaimed water are considerably higher than in the ground water, and high dissolved solid levels can be harmful to citrus crops. In fact, the Institute of Food and Agricultural Sciences recommends that citrus irrigation water not exceed total dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl). Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged between 1200 and 1500 mpl. Though within recommended parameters, it was toward the high end. Further, reclaimed water is not totally interchangeable with ground water for all agricultural purposes. It cannot, by law, be applied to certain types of ground crops such as melons, nor can it be used for overhead citrus irrigation. There is also a restriction on the use of reclaimed water for pastures on which dairy cattle will be grazed. This all results in a restriction on the options available to the farmer who chooses to use reclaimed water in his irrigation plan. As a result, many farmers try not to use reclaimed water if they have access to adequate amounts of groundwater from on- site wells. Notwithstanding all the above, the parties agree that the use of reclaimed water for irrigation purposed is in the public interest. The District encourages it but nonetheless concedes that even with the availability of reclaimed water, a farmer should have access to wells on his property, in a standby capacity, as an alternative source of water to support his farming activities. Not only that, the agreement between the City and Hi Hat provides for Hi Hat to maintain its water use permit even while receiving reclaimed water from the City. Hi Hat is not the only farm operation with whom the City has negotiated in a effort to expand its wastewater distribution program. It has found in those negotiations, that most farm producers are not willing to rely totally on reclaimed water for all their irrigation needs, and it has concluded that were it mandatory that a farmer give up his on-site ground water withdrawals in order to utilize reclaimed water for a part of his needs, most would be reluctant to use it at all. This would seriously interfere with the City's ability to dispose of its surplus reclaimed water consistent with its policy. Even though Hi Hat's property lies within the Eastern Tampa Bay Water Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat because Hi Hat filed its application for permit, which was deemed complete, prior to the adoption of the rule. Nonetheless, water use officials agree that the proposed permit is consistent with the rule emphasis on the use and reuse of reclaimed water, and the District does not object to backup wells being permitted as supportive of the District's desire to keep ground water within the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No. 204387.03, within the limits of the authorized quantities as indicated in the intent to issue, subject to conditions contained therein; except that the permit be amended to show well No. 5 as a non-standby well, and to delete standby wells from the terms and requirements of Special Condition 22. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted Accepted and incorporated herein. Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 11. Accepted. - 15. Accepted and incorporated herein. Accepted. Accepted. & 19. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. She testified that Condition 28 of the permit provides this. Accepted. Accepted. Accepted and incorporated herein. Accepted. & 36. Accepted. Rejected as not supported by the evidence except that the method permitted was the method being used. - 40. Accepted. Ms. Jackson indicated she "assumed" some wells were drilled into the Florida aquifer. Rejected. Accepted as qualified by the comment, "depending on the respective potentiometric heads." - 47. Accepted. Accepted but incomplete. This is because they did not feel it was necessary under the circumstances. - 51. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. Redundant. - 61. Accepted. - 66. Accepted and incorporated herein. Accepted. More a restatement of testimony than a Finding of Fact Accepted and incorporated herein. & 71. Accepted and incorporated herein. - 74. Accepted. Accepted. First sentence accepted. Second portion rejected since cited case involves active wells versus standby, as here. The comparison made is accepted. The conclusion drawn as to validity is rejected. & 79. Accepted. FOR THE RESPONDENTS AND INTERVENOR: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 33. Accepted and incorporated herein. 34. - 37. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. - 42. Accepted and incorporated herein. Accepted and incorporated herein, & 45. Accepted. 46. & 47. Accepted and incorporated herein. COPIES FURNISHED: Wyatt S. Bishop 5153 Tucumcari Trail Sarasota, Florida 34241 Bram D.E. Canter, Esquire Haben, Culpepper, Dunbar & French, P.A. 306 N. Monroe Street Tallahassee, Florida 32301 Edward B. Helvenston, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara B. Levin, Esquire de la Parte & Gilbert 705 East Kennedy Blvd. Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether Respondents should be subject to civil penalties and required to submit a Compliance Plan for the reasons stated in the Administrative Complaint and Order filed on January 8, 2002.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this enforcement action, Petitioner, Southwest Florida Water Management District (District), proposes to assess civil penalties against, and require a compliance plan from, Respondents, Balm Associates, Inc. (Balm) and Goodson Farms, Inc. (Goodson), on the grounds that from March 1999 through July 2001 they made water withdrawals from certain property in Hillsborough County, Florida, without a water use permit, and after a permit was obtained in August 2001, they continued to exceed the annual average daily withdrawals authorized under the permit through the month of November 2001, or just prior to the preparation and issuance of the Administrative Complaint and Order (Complaint).1 While not denying that excessive pumpages may have occurred, and that a permit was not obtained until August 2001, Balm points out that it is the owner-lessor of the property and not the consumptive user of the water, and contends that the District has no authority to enforce its rules against, and recover civil penalties from, the non-user of the water. In its request for a hearing, Goodson did not specifically dispute the allegation that it consumed water without a permit, or exceeded the withdrawal limits under the new permit, but contended instead that the limits were unrealistic and should be modified. At the final hearing, however, Goodson disputed the accuracy of the water consumption figures used in the Complaint. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries and to administer and enforce Chapter 373, Florida Statutes. Balm is a corporation registered to do business in the State of Florida. Its mailing address is 2101 Huntington Avenue, Sarasota, Florida 34232. It owns approximately 220 acres of land in Section 28, Township 31 South, Range 21 East, in Hillsborough County, Florida, which is the site of the alleged wrongdoing. Goodson is a corporation registered to do business in the State of Florida. Its mailing address is Post Office Box 246, Balm, Florida 33503. Goodson is in the farming business and operates a total of 13 farms, including the farm at issue in this proceeding. Permit Requirements Under Rule 40D-2.041(1), Florida Administrative Code, a water use permit is required whenever total withdrawal capacity from any source or combined sources is greater than or equal to 1,000,000 gallons per day (gpd); annual average withdrawal from any source or combined sources is greater than or equal to 100,000 gpd; or withdrawal is from a well having an outside diameter of 6 inches or more at the surface. Rule 40D-2.351(1), Florida Administrative Code, provides that a permittee must notify the District within 30 days of the sale or conveyance of permitted water withdrawal facilities or the land on which the facilities are located. The same rule also provides that where a permit has been issued to a party whose ownership or legal control of the permitted water withdrawal facilities subsequently ends, the party who assumes control over the facilities may apply to transfer the permit to himself or herself up to the renewal date of the transferor's permit. Finally, Rule 40D-2.351(2), Florida Administrative Code, provides that until a permit is transferred or a new permit is obtained, the party subsequently controlling the permitted water withdrawal facilities will be in violation of District rules for making withdrawals without the required permit. History of Permits on the Property On September 29, 1989, the District issued Water Use Permit No. 207135.001 (the .001 permit) to James Brown (Brown) and B & T Growers Partnership (B & T) for water withdrawals from one well for agricultural purposes on Balm's property. The .001 permit authorized annual average withdrawals of 102,000 gpd of groundwater for agricultural irrigation. On August 29, 1990, the District adopted new rules applicable to District permits within the Eastern Tampa Bay Water Use Caution Area (ETBWUCA). The .001 permit was within the ETBWUCA, and Brown and B & T were provided with a Notice of Permit Modification and new Permit Conditions. The new conditions became effective November 15, 1990. New Condition No. 5 provided that By July 31, 1995, all permitted withdrawal points shall be equipped with totalizing flow meters or other measuring devices as approved in writing by the Director, Resource Regulation Department. Such devices shall have and maintain accuracy within five percent of the actual flow installed. On December 14, 1992, the District approved the transfer of the .001 permit from Brown and B & T to B. Kenda Produce. The Unpermitted Water Withdrawals On June 30, 1997, Goodson entered into a two-year agricultural lease with Balm to use a portion of the property, including acreage previously used by B. Kendra Produce. At the time the lease was entered into, neither Respondent applied to the District to have the .001 permit transferred from B. Kendra Produce. It can be reasonably inferred from the evidence that after the first lease expired, the parties continued to execute new lease agreements at least through the time of the hearing. The portion of the property which Goodson leased and farmed is referred to as the "Sweat Loop Farm" and consists of approximately 100 acres. There is one well with an outside diameter of 10 inches at the surface located on the Sweat Loop Farm. The well's total withdrawal capacity is approximately 1,500 gallons per minute (gpm), which is over 1,000,000 gpd. Thus, withdrawals from the well required a water use permit. As noted earlier, Goodson operates a total of 13 farms on approximately 2,500 acres of land. There are approximately 15 wells on all 13 farms, including the Sweat Loop Farm. Michael E. Hare, an irrigation supervisor who is responsible for the irrigation of all 13 of Goodson's farms, installed a total of approximately 8 meters on the farms, including the meter on the Sweat Loop Farm. A totalizing flow meter, which was made by MiCrometer, was installed at the Sweat Loop Farm in June 1997. Mr. Hare acknowledged that he was familiar with MiCrometer meters and would be aware if the MiCrometer flow meter on the Sweat Loop Farm was not functioning properly. Whenever metering devices on the various Goodson farms have malfunctioned in the past, Mr. Hare has taken the malfunctioning meter to a metering company to be fixed. Goodson began irrigating the Sweat Loop Farm in June 1997. Since that time, Goodson has been the sole water user of the well on the farm. In March 1999, Goodson began submitting to the District monthly pumpage reports for the groundwater withdrawals on the Sweat Loop Farm. Although some unmeasured withdrawals presumably occurred prior to March 1999, the Complaint does not identify these as being a violation. Mr. Hare and other supervisors are responsible for collecting the meter readings which go on the monthly pumpage reports and providing them to the District. The information on the reports includes the permit number; the last month's meter reading; the current month's meter reading; the total gallons of water pumped for the current month; the meter total; and the meter factor. To determine the average daily withdrawal on the Sweat Loop Farm, the District relied upon the calculations provided by Goodson as to the total gallons of water pumped for the month and divided this number by 30 days. From March 1999 through July 2001, these quantities were as follows: MONTH/YEAR AVERAGE DAILY PUMPAGE March 1999 April 1999 531,487 No data available May 1999 364,930 June 1999 0 July 1999 0 August 1999 57,410 September 1999 49,563 October 1999 222,667 November 1999 250,667 December 1999 755,003 January 2000 689,433 February 2000 695,073 March 2000 544,427 April 2000 305,153 May 2000 597,720 June 2000 0 July 2000 62,120 August 2000 86,370 September 2000 123,233 October 2000 602,020 November 2000 409,550 December 2000 145,823 January 2001 957,690 February 2001 890,213 March 2001 391,280 April 2001 467,640 May 2001 617,177 June 2001 0 July 2001 0 Under Rule 40D-2.041(1)(a)-(c), Florida Administrative Code, a water use permit was required for Goodson's withdrawals since the well's total withdrawal capacity is approximately 1,500 gpm, which is greater than 1,000,000 gpd; the annual average withdrawals exceeded 100,000 gpd; and the well has an outside diameter of 10 inches at the surface. The withdrawals on the Sweat Loop Farm were not authorized by the .001 permit since neither Goodson or Balm was a permittee under the permit. Even if Goodson could rely on the permit, which it cannot, pumpage data provided by Goodson reflects that the water withdrawals (except for nine months) were in excess of that authorized by the permit. On June 16, 2000, the District mailed a Notice of Non-Compliance for excessive water withdrawals to Goodson. The Notice indicated that if the pumpage values submitted by Goodson were incorrect, Goodson was to explain the error and provide corrected quantities. On June 26, 2000, the District received a written response to the Notice of Non-Compliance from the superintendent of the Sweat Loop Farm who indicated that the pumpage values were correct, and that the excess usage was due to a "serious drought condition" which had caused a "significant financial hardship on [the] farm." The response also indicated that Goodson would contact Mr. Haftel, owner of Balm, to request that he "revise the water use permit for spring crops." On November 22, 2000, the District mailed Goodson a Notice of Violation indicating that the quantities authorized by the .001 permit were still being exceeded and that the District might seek monetary penalties if Goodson failed to come into compliance within 30 days. Despite the foregoing Notice, Goodson continued to make withdrawals without a permit and in excess of the quantities formerly authorized under the .001 permit until August 2001 when a new permit was finally obtained. Issuance of a New Water Use Permit On January 2, 2001, the District received an application for a General Water Use Permit seeking to modify the .001 permit to increase the withdrawal quantities and to transfer the permit from B. Kendra Produce to Balm. "Seymour Haftel/ Balm Associates, Inc." was listed as the applicant, and "Donn Goodson" from " Goodson Farms" was listed as the contact or consultant. Mr. Haftel signed the application on behalf of Balm. Goodson assisted Balm in securing the permit for the Sweat Loop Farm because Goodson wanted more water for irrigation purposes. Section 2.1 of the Basis of Review for Water Use Permit Application, adopted and incorporated by reference by Rule 40D-2.091, Florida Administrative Code, provides that "[a]pplications for leased property, except property leased from the District, must be either a joint application in the name of the lessee and the property owner(s) or be only in the name of the property owner(s)." In a Request for Additional Information mailed to Balm on January 29, 2001, the District asked whether Goodson should be listed as co-applicant on the application. On April 27, 2001, Balm submitted a response which indicated that Goodson should not be listed as co-applicant. On August 6, 2001, the District issued Water Use Permit No. 200007135.002 (the .002 permit) to Seymour Haftel/Balm Associates, Inc. authorizing an increase in the annual average withdrawals to 224,300 gpd. The permit had an expiration date of September 29, 2009. The permit contained a number of special conditions, none of which were challenged by Balm. Unauthorized Withdrawals Under the .002 Permit Special Condition No. 2 of the .002 permit requires in part that the permittee: continue to maintain and operate the existing non-resettable, totalizing flow meter(s), or other flow measuring device(s) as approved by the Regulation Department Director, Resource Regulation, for District ID No(s), Permittee ID No(s)[,] G-1. Such device(s) shall maintain an accuracy within five percent of the actual flow as installed. Total withdrawal and meter readings from each metered withdrawal shall be recorded on a monthly basis and reported to the Permit Data Section, Records and Data Department, (using District forms) on or before the tenth day of the following month. In the event a permittee chooses not to use a totalizing flow meter, as required by Special Condition No. 2, the District will review information provided by the measuring device's manufacturer to determine if the measuring device would maintain a five percent accuracy as required by the Condition. The meters have to be monitored and calibrated periodically for accuracy. It is the permittee's responsibility to comply with the conditions of the permit, including Special Condition No. 2, which requires the submittal of accurate pumpage reports. Goodson submitted the meter readings on behalf of Balm beginning in September 2001, which covered the withdrawals for the month of August 2001. The District relied on the meter readings submitted by Goodson to determine the annual average daily pumpage calculation for the .002 permit. The calculation is a running 12-month average, whereby each month the annual average daily quantity is recalculated based on the previous 12-month pumpage. The running annual average daily pumpage and percentage of pumpage which exceeded the .002 permit from August 2001 through May 2002 are as follows: MONTH/YEAR ANNUAL AVERAGE DAILY PUMPAGE PERCENTAGE OVERPUMPED August 2001 378,462 69 percent September 2001 382,622 71 percent October 2001 376,687 68 percent November 2001 383,008 71 percent December 2001 379,212 69 percent January 2002 327,343 46 percent February 2002 321,530 43 percent March 2002 350,701 56 percent April 2002 356,013 59 percent May 2002 338,131 51 percent As the foregoing data reflects, the withdrawals from the Sweat Loop Farm were in excess of that authorized by the .002 permit from August 2001 through May 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order determining that Respondents are guilty of the charges in its Administrative Complaint and Order except as concluded in paragraph 48 above and endnote 2 below; that Respondents be required to submit an acceptable written plan (Compliance Plan) to the District for its consideration and approval within fourteen days after entry of the final order; that the Compliance Plan describe how Respondents shall achieve full compliance with the .002 permit; that the Compliance Plan include reductions in withdrawals, water conservation measures, and development and utilization of alternative resources; that the Compliance Plan establish deadlines for implementation and completion of corrective actions; that full compliance be achieved within 120 days after entry of the final order; and that any failure of Respondents to comply with any provision of the Compliance Plan shall constitute a violation of the final order. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2002.
Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
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.
The Issue The issue is whether WRP, Inc.'s application for an Individual Water Use Permit to construct five 24-inch diameter wells in Walton County, Florida, and to withdraw an average of 4.84 million gallons per day for twenty years, should be issued, as proposed by the agency on June 5, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Respondent, Northwest Florida Water Management District (District), is an independent special district of the State of Florida created pursuant to Section 373.069, Florida Statutes. The District is charged with regulating consumptive uses of water in a sixteen-county area in Northwest Florida, including all of Walton and Okaloosa Counties. Respondent, WRP, Inc. (WRP), is a not-for-profit Florida corporation with its headquarters in Walton County, Florida. It is jointly owned by Destin Water Users, Inc. (DWU) and South Walton Utility Company, Inc. (SWUC). Both DWU and SWUC are not- for-profit Florida corporations that own and operate water supply systems (with thirteen operating wells) in and around the southern portions of Okaloosa and Walton Counties. Established in 1995, WRP was originally organized as a partnership made up of DWU, SWUC, and Petitioner, Florida Community Services Corporation of Walton County, d/b/a Regional Utilities of Walton County (RU). This partnership was established for the purpose of cooperating in the development of an alternate water supply for the utilities' service areas. Thereafter, the partnership was dissolved, which led to the establishment of WRP. RU is no longer a part of this organization. Petitioner, City of DeFuniak Springs, is a municipal corporation in Walton County, Florida. The city owns and operates its own public water supply system. At the present time, it serves approximately 15,200 persons who reside both inside and outside the corporate limits of the city. Petitioner, City of Freeport, is a municipal corporation in Walton County, Florida, and owns and operates its own public water supply utility. RU is a not-for-profit Florida corporation which, pursuant to a lease, operates a public water supply system in the coastal area of Walton County under a permit issued by the District. It presently serves around 500 customers representing a population of 17,000. A portion of its water supply is also obtained from the City of Freeport. Petitioner, Walton County (County), is a political subdivision of the State of Florida pursuant to Article 8, Section 1 of the Florida Constitution. The County owns the land and facilities used by RU for its public water supply system. However, under a lease agreement between those parties, RU operates the system. In addition, the County also owns a small well recently constructed near the Rock Hill area. Historical Background of the Area's Water Supply The District's overall responsibility in the consumptive use program is to provide for all citizens the sustainability of the water resources of Northwest Florida. It also seeks to allocate the resource in a manner that is reasonable and beneficial, that is in the public interest, and that will not interfere with the use associated with other existing legal users. This is often referred to as the three prong test. Ground water is measured by the location of its potentiometric surface in relation to sea level. The potentiometric surface is the level to which water will rise in a tightly cased well. In portions of coastal Okaloosa and Walton Counties, the potentiometric surface of the Floridan Aquifer is below sea level. At one coastal location the surface is at 110 feet below sea level as compared to elevations of more than 200 feet above sea level in the northern portions of those counties. When the potentiometric surface is below sea level it is called a cone of depression. As shown on District Exhibit 1, the cone of depression in the coastal area of Okaloosa and Walton Counties has grown from 1974 to 1995. The decline of these water levels in the coastal areas is further supported by the hydrographs found on the District's Exhibit 2 entitled Floridan Aquifer System Water Level Trends. These hydrographs document the reduction in the potentiometric surface over time. Of particular significance are the hydrographs of the "Okaloosa School Board" well which show the potentiometric surface to be 60 feet above sea level in the late 1930's when it was constructed and to be approximately 110 feet below sea level in 1996. As early as 1982, the District recognized a threat to the continued existence of a long-term sustainable water supply for the coastal regions of Walton and Okaloosa Counties. Significantly, the pumping of water from the Floridan Aquifer in this coastal region has caused a degradation to the aquifer and the water resources. As a result, the District began taking affirmative steps to protect the water resources in the coastal area of Walton and Okaloosa Counties. In 1982, the District undertook a regional water supply development plan entitled 1982 Regional Water Supply Development Plan (the 1982 Plan). The 1982 Plan assessed the sustainability of water resources in the coastal region of Okaloosa and Walton Counties, estimated the Floridan Aquifer's water supply capabilities in relation to expected long-term water demand, and addressed the need to find an alternative long-term water supply for these coastal regions. The 1982 Plan also discussed strategies for alternate water resource development including inland well fields, desalinization, conservation measures, and use of surface water from the Choctawhatchee River. In 1988, the District developed an addendum to the 1982 Plan, known as the 1988 Plan, which addressed similar issues. In particular, the 1988 Plan further emphasized the need for the coastal water utilities of DWU, SWUC, and RU to use inland well fields and/or desalinization as potential alternatives for the long-term water supply needs of the area. The 1988 Plan eliminated surface water from the Choctawhatchee River as a potential alternate source for the long-term water supply needs of the area because it was not technically, economically, and environmentally feasible. The thrust of these two studies is to encourage movement of withdrawals away from coastal areas. In 1989, the District implemented Rule 40A-2.801, Florida Administrative Code, which authorizes the declaration of areas of the District as "water resource caution areas." In that same year the District adopted Rule 40A-2.802(1), Florida Administrative Code, which designates the coastal area of Walton and Okaloosa Counties as a water resource caution area. This designation means that the water resources of the coastal area are limited and will not be sufficient to meet the water needs of the area within a period of twenty years. In addition, the rule prohibits non-potable uses of the Floridan Aquifer as against the public interest. Since 1989, the District has worked with DWU, SWUC, and other coastal water supply utilities to expedite the development of alternate water sources and implement water conservation measures. In Okaloosa County, the District has placed limitations on the diameters of wells and the amount of water that can be withdrawn from coastal wells. To promote conservation of water, the District has imposed stricter requirements for the reuse of wastewater; promoted the adoption by coastal utilities of inverted rate structures; required that utilities implement retrofit programs to replace old water fixtures with more efficient water-saving devices; required that utilities account for losses due to system leakage; required that utilities provide for education programs and public service announcements on the need to conserve water; and encouraged utilities to seek adoption of water efficiency landscape and irrigation ordinance by the appropriate local governments. The measures taken by the District are intended to address the harmful impacts to the Floridan Aquifer caused by increasing coastal water withdrawals. Because the District has determined that the water resources are limited, the District has mandated that alternative water supplies must be identified and developed in order to provide for a sustainable and long-term source of potable water in the coastal areas of Okaloosa and Walton Counties. There is no evidence to refute the District's concerns regarding the impact of continued coastal withdrawal and the need to find an alternative source of potable water to meet the region's long term demands. Based on the evidence, it is clear that coastal withdrawals of ground water cannot continue and that an alternate source of water must be found to meet the long-term water demands of the coastal areas of Walton and Okaloosa Counties. The Application In July 1996, WRP submitted a Consumptive Use Permit Application (CUPA) for the withdrawal of water from an inland wellfield in Walton County. The CUPA requested a maximum withdrawal of 7.2 million gallons of water per day (mgd) from two production wells with additional wells to be constructed on an as needed basis. The original application placed the wells along Highway 20 in the vicinity of the City of Freeport, or some twenty miles north of its present wellfields. This location concerned the District because of its proximity to the Choctawhatchee Bay and the saltwater/freshwater interface. In response to the District's concerns, WRP relocated the proposed wellfield farther north and inland to a 4,900 acre site approximately five miles north of the City of Freeport, known as the Rock Hill site. Under the proposed permit, WRP may withdraw an average of 4.84 mgd from the Floridan Aquifer from five 24-inch diameter wells. All withdrawals of water are authorized solely for public supply use. The proposed permit also authorizes a combined monthly withdrawal limit of 150,040,000 gallons. The permit is issued for a twenty-year period and has an expiration date of June 26, 2018. The proposed permit contains numerous conditions to issuance. They are primarily intended to implement water conservation and efficiency measures as well as monitor and mitigate any impacts to the Floridan Aquifer and existing legal users caused by the permitted water withdrawals. Compliance with Permitting Standards The District's overall responsibility in the consumptive use program is to provide for the sustainability of the water resources of Northwest Florida. In allocating water resources, the District seeks to do so in a manner that is reasonable and beneficial, that is in the public interest, and that will not interfere with the use associated with other existing legal users. WRP's compliance with these broad standards will be discussed in detail below. Reasonable and Beneficial Use of the Water In determining whether a water use is reasonable and beneficial, the District must consider the criteria set forth in Rule 62-40.410(2)(a)-(r), Florida Administrative Code. Quantity of Water Requested [62-40.410(2)(a)] In its original application, WRP requested withdrawals of 7.2 mgd. Because of the District's concern that the amount of withdrawals and projected annual rate of growth were too great, the permitted amount has been revised downward to 4.84 mgd. This quantity is not excessive, and the actual pumping under the permit will be less than the amount modeled for evaluation of impacts. Demonstrated Need [62-40.410.(2)(b)] The current water source for both DWU and SWUC is coastal Walton and Okaloosa Counties. That source is insufficient for future needs, and the demand placed on that resource should be reduced. As noted above, the need for coastal areas to develop an alternative wellfield was recognized by the District as early as 1982. This finding was reconfirmed in a District study completed in 1988. The record supports a finding that WRP has shown a demonstrated need for the alternative site. Suitability and Value of Use [62-40.410(2)(c) and (d)] WRP is requesting a withdrawal of water for public supply. This type of use within the Rock Hill area is a suitable use of that resource. Also, the Rock Hill area has long been identified as a good location for an inland wellfield. The suitability of the use to the source of water is demonstrated by the high quality of the raw water which can be easily treated for potable drinking water. The purpose is for domestic consumption, which is the highest use. The proposed wellfield is the closest available inland groundwater source with minimal impact. In terms of value, WRP is proposing to withdraw water from the Floridan Aquifer to provide the public with drinking water. The provision of a long-term, reliable source of water is a high value. It also helps to sustain the resource in coastal Okaloosa and Walton Counties by reducing future demands on the source. The Extent and Amount of Harm Caused [62-40.410(2)(e)] The evidence establishes that neither the resource nor the existing legal users will be harmed by the proposed activity. Harm would occur, for example, when a domestic user would be permanently denied water as a result of a proposed pumping activity. Although this condition should not occur, the permit contains conditions to mitigate this event. WRP conducted a test well program and extensive groundwater modeling at its proposed wellfield to establish the drawdown curve that would exist in the Floridan Aquifer. The extent and amount of harm caused is not significant, and WRP has demonstrated that there will be no significant environmental impact or impact to other users. There will not be any drawdown impacts in the surficial aquifer, nor should there be any discernible impact on the Floridan Aquifer. Drawdowns as a result of WRP pumping in the potentiometric surface in the Freeport area are expected to be two feet in the year 2005, and around five feet in the year 2018. These are not considered significant drawdowns for a public supply well. Under the proposed permit, WRP will be required to mitigate any impacts attributable to its withdrawal that interfere with domestic users in the vicinity of the wellfield. Any problems encountered in domestic wells in the area can be remedied by adding a length of pipe, or lowering the pumps in the wells. The water resource will not be significantly impacted by saltwater intrusion as a result of the proposed use. The greatest part of the advance of the saltwater wedge is due to the City of Freeport's own pumping; WRP's contribution to the advance is minimal. This is because the City of Freeport is closer to the coast. Any impacts on wells within the City of Freeport from chlorides will be the result of their own pumping, and not that of WRP's proposed pumping. Mitigation of Harm [62-40.410(2)(f)] The District does not anticipate that any harm to other legal users will occur. Even assuming arguendo that some harm might occur, there are two conditions in the permit that can be invoked to ensure that the issues are addressed. Standard Condition 11 entitles the District to curtail permitted withdrawal rates if such withdrawal causes significant adverse impacts on existing legal uses of water, or adjacent use, while Special Condition 17 requires that WRP mitigate any impacts to existing legal users if such interference should occur. The District envisions the latter condition to be implemented through a telephone hotline and arrangements with a water well contractor to remedy any adverse impact. To the extent that any harm to area domestic wells may occur, WRP has agreed to correct any individual adverse impacts by either lowering the pump, deepening the well, replacing the well, or whatever may be necessary. This is consistent with Special Condition 17, which requires that WRP mitigate impacts attributable to its withdrawal which interfere with users of water in the vicinity of their wellfield. Finally, the proposed permit has a system of checks and balances by which the District can look at actual water uses over time and adjust them while still providing for coastal reductions. Impacts on Other Lands [62-40.410(2)(g)] Although WRP purchased approximately five thousand acres on which to site its wellfield, not all of the property is necessary to run the wellfield. The parcel was purchased so that any adverse effects from the pumping would not affect landowners, and the majority of the drawdown would be confined to the purchased property. The test well program conducted at the remote wellfield, and the modeling conducted by WRP Witness Maimone, establish that the greatest impacts will be on lands owned and controlled by WRP. Method and Efficiency of Use [62-40.410(2)(h)] The method and efficiency of use by WRP is demonstrated by its utilization of water conservation measures to ensure that efficiency is maximized throughout the system. The use of ground water from the inland wellfield is an efficient method of providing potable water for public supply. Water Conservation Measures [62-40.410(2)(i)] The District has mandated that certain conservation steps be taken to protect the resource in the Okaloosa and Walton County area. This is consistent with the District's efforts to require implementation of conservation measures by coastal water supply utilities. Reuse of treated wastewater has been encouraged, and it is used to irrigate golf courses and private landscapes. Also, the District is requiring DWU and SWUP to account for and correct water losses, and to undertake retrofit programs among homeowners and commercial establishments to install water-saving devices and other types of efficiency measures. Except on rare occasions, all DWU treated effluent is used for irrigation. Indeed, DWU is currently achieving a 100 percent reuse rate. Reuse water currently supplied to customers of DWU is not available for aquifer storage. As part of a general conservation effort, DWU has replaced almost 6,000 water meters in the last five years. The City of Destin, which is within DWU's service area, has distributed low-usage shower heads, and it has implemented a low volume toilet ordinance which requires these types of fixtures in all new construction. Currently, DWU has a 12 percent water loss and is attempting to meet the District's recommended goal of 10 percent. SWUC has various programs in place to conserve potable water. The conservation methods include an inverted block structure, reuse, and public education. Currently, SWUC provides reuse irrigation water to golf courses and a subdivision. The evidence supports a finding that the water use proposed by WRP will not be wasteful. Conditions 3 through 12 in the permit require WRP to implement a comprehensive series of water conservation and efficiency measures. Without the new wellfield, it would be impossible to conserve a sufficient amount of water to be able to provide for the future needs of the citizens to be served by WRP. The District will require WRP to comply with a comprehensive water conservation and efficiency program. The conservation and efficiency program includes implementation of a retrofit program, reduction of unaccounted for losses to less than ten percent, five-year audits, landscape ordinances, and irrigation ordinances. Feasibility of Other Sources [62-40.410(2)(j)] The District has identified no available surface water body from which WRP could meet its anticipated demands. In 1988, the Choctawhatchee River was determined not to be a feasible source. Additionally, the Sand and Gravel Aquifer is not suitable for a large, public supply utility to access. In 1982, Eglin Air Force Base (Eglin) was projected to be a location for regional wellfields. The 1988 Plan, however, removed Eglin as a possible solution for long-term water supply problems due to Eglin's decision not to allow wells on the reservation. SWUC, DWU, and WRP all produced water masterplans in order to identify options available to address the additional water supply needs in the area. Upon its formation, WRP undertook an investigation to determine whether additional water supplies could be provided best by a remote wellfield or by a reverse osmosis (RO) plant. The study was undertaken because the the available water supply clearly would be insufficient and other options should be considered. After being formed, WRP immediately purchased options from the Champion Paper Company for six well sites along Highway 20. At considerable expense, WRP investigated the RO alternative as a water supply source along with other alternative sources such as reclaimed water, stormwater, brackish water, and saltwater. WRP constructed a RO test well to evaluate that option. The test well extended into the Lower Floridan Aquifer since that aquifer was considered as a possible source of brackish water from which potable water could be produced. The District provided a $30,000 grant toward the RO evaluation, and it also provided technical assistance and guidance to ensure that WRP obtained the type of data that the District desired. Assumptions made in evaluating the cost of the RO option were designed to predict the lowest possible construction and operating costs. Also, a number of problems were identified with the RO process. These included long-term water quality, contamination, and disposal of the waste (reject water) produced. These concerns are addressed separately below. The potential for long-term change in water quality is the most important factor in evaluating the feasibility of the RO option. WRP's test well showed chlorides at 1,800 parts per million; 200 feet below that, the test well was half seawater; and at another 200 feet below, the test well was full of seawater. These results indicated that saltwater upconing was a severe concern. The data strongly indicated that water quality would not remain constant for very long in the RO well. An analysis made by WRP estimated that saltwater upconing would occur in less than a year and probably within a matter of months. The analysis considered only vertical movement for upconing within the RO test well, and it did not consider the effects of horizontal movement. These assumptions produce the most reliable result possible. The possibility of lateral movement is an additional risk to the water quality in the RO test well. Together with the potential for upconing shown in the study conducted by WRP, a great amount of uncertainty existed in the raw water source in terms of long-term stability and water quality. If seawater occurred within the aquifer at some close proximity to the RO test well, then ultimately the whole system could convert from brackish water to a seawater system. This would change the entire economics of the treatment process and plant design, and it would diminish WRP's ability to obtain a concentrate disposal permit. Without some certainty as to the quality of water over time, RO is not a viable alternative. The data summarized in WRP's report demonstrates that copper values in excess of 2.9 micrograms per liter (mcg/l) were present in the water withdrawn from the well. Samples taken directly from the Lower Floridan Aquifer using the Packard Stem Test indicated that the copper came from the aquifer formation. The established water quality standard for copper in Class II waters is 2.9 mcg/l. As noted above, this standard would be violated. The concentrate or reject water from the RO process utilizing the subject source would be expected to contain five times the copper concentration of the raw water. In addition to this concern, gross alpha, Radium 226, and Radium 228 were also present in grab samples and constituted another potential problem. These types of contamination render the RO option unfeasible because of problems with disposal of the concentrate or reject water. A RO option necessarily includes a brine disposal element. The disposal would be in the form of a reject stream that would be continuously discharged from the RO facility while in operation. The concentrate from the RO process is classified as an industrial waste. In Florida, the method for disposal for the reject water includes deep well injection and surface water disposal. However, the deep well injection of reject concentrate is not feasible for the RO well because the Lower Floridan Aquifer has no internal confinement between the zone of withdrawal and a proposed zone of injection. Moreover, there is no zone in Northwest Florida sufficient to be used for this type of injection in these volumes. The only other remaining option would be surface water discharge which requires a National Pollutant Discharge Elimination System permit. Any surface water discharge with respect to RO would be to Class II waters, which would be far more difficult to permit than a Class III water, where such discharges have normally occurred. In addition, because of the high level of copper in the reject concentrate, it would be extremely difficult to receive a mixing zone for copper at the extended concentrations. Since 1982, the District has recommended that an inland wellfield be developed in the area north of the City of Freeport. An inland wellfield is a more reliable source of water with a greater amount of certainty, can be permitted within a reasonable period of time, and is less expensive. WRP's proposal for a remote, inland well in the Rock Hill area is consistent with these goals. Present and Projected Demand for Water [62-40.410(2)(k)] The District relied upon two studies to reach the conclusion that the average growth rate for water would be three percent per year in WRP's service area. This contrasts with WRP's projection that a five percent growth rate would be more accurate. Due to the high degree of uncertainty in the area of growth and water demand, the District has provided a mechanism to deal with underestimated growth which includes periodic review of the withdrawal amounts by the District and corresponding adjustments, if necessary. It is clear that the supply of water is adequate to provide water for WRP as well as other users in the area. Long-Term Yield Available from the Source of Water and Water Quality Degradation [62-40.410(2)(l) and (m)] Sufficient water resources exist in the Rock Hill area to meet projected water demands through the year 2018. No impact to the surficial aquifer is expected, while only minimal impact to nearby surface water is projected to occur. The movement of the saltwater wedge is not a factor. For some fifteen years, the District has taken steps to monitor and reduce coastal well withdrawals. More recently, it directed its staff to notify all existing non-potable users of the Floridan Aquifer that at the time of permit renewal, they may be required to find alternate sources. Starting two years ago, a number of these permits came up for renewal. In some cases, the applicants were given approximately two years to eliminate the Floridan Aquifer withdrawals, find an alternate source, and plug their wells. The potential for water quality degradation is evaluated through computer modeling. A modeling plan is a document that describes the approach that a modeler is going to use to build a model. It specifies the various components of the model, battery conditions, modeling techniques, model domain, and the modeler's conceptualization of the stratigraphy. WRP's model demonstrates a lack of degradation of the water resources. The modeling of the saltwater wedge indicates that the wells in the Freeport area will not be threatened. There will be negligible impacts to base stream and river flow and no impact to surface wetlands. Based on the present and projected demand for the source of water, no significant impact to the environment or to existing users will occur. To the extent water quality degradation might occur, it will cause a minimal amount of change in the position of the diffused chlorides in the coastal zone. The predicted impacts to water quality take into consideration the coastal reductions which will limit pumping of the coastal wells and switch withdrawals to the alternate inland source. Proposed Flood Damage [62-40.410(2)(n)] There is no indication that WRP's proposed withdrawal activity will cause any flood damage. The proposed use will not cause or contribute to flood damage due to its negligible affect on surface waters. Significant Inducement of Saltwater Intrusion [62-40.410(2)(o)] WRP's coastal saltwater intrusion model used worst case conditions when estimating the movement of the saltwater wedge. Indeed, the saltwater intrusion was computed so conservatively that the existing coastal wells were modeled pumping saltwater instead of the actual freshwater that they currently pump. The movement of the saltwater wedge is not projected to be dramatic over the next 50 years. The location of the saltwater wedge in the year 2050 would still be 600 feet below sea level. The wedge does not approach, nor would it threaten, the City of Freeport's wells. In fact, any potential risk of saltwater contamination in Freeport's wells is due to that City's current pumping rates. The Amount of Water Which Can be Withdrawn [62-40.410(2)(p)] The amount of water withdrawn by WRP will have no significant impact on the resource. This finding is supported by a WRP groundwater modeling study. The impacts of the wellfield on the potentiometric surface do not go below sea level. There will be no drawdown impact in the surficial aquifer or any discernable impact on the Floridan Aquifer. Adverse Effect on Public Health [62-40.410(2)(q)] No potential adverse effects on public health have been identified in the instant case, and there is no indication that WRP's withdrawals would affect public health. The resource is a high-quality use and would provide the public with a high-quality source of water for drinking purposes. Significant Effects on Natural Systems [62-40.410(2)(r)] The evidence established that there will be no impacts to surface wetlands and very minimal impacts to base stream flow. Base flow is the constant flow from groundwater into surrounding waters. Any reduction in the flow of groundwater to the Choctawhatchee River as a result of WRP pumping is negligible. Slight impacts were observed in the base flow of streams close to the proposed wellfield site. Impacts on the surface water are also minimal. Riparian wetlands would be unaffected by the water level decline that was simulated as a result of WRP pumping. Finally, any impacts associated with the construction of the transmission pipeline from the inland wellfield are temporary in nature and extend only through the period of construction. Consistent with the Public Interest The evidence demonstrates that the use of the water by WRP, as well as the water use reduction allocation, is consistent with the public interest. WRP is proposing to withdraw water from the Floridan Aquifer in the Rock Hill area to provide citizens with drinking water. The purpose of domestic consumption is the highest and best use of a water resource. The public interest is served through the proposed reduction in coastal groundwater withdrawals contained in the WRP permit. Reduction in the withdrawals from the coastal areas has been a long-term goal of the District in order to protect water resources in the area. WRP's proposed use is also consistent with the public interest in that the use will not affect natural systems in the area. Similarly, the use proposed by WRP is consistent with regional water supply planning needs. Finally, the proposed use is consistent with the comprehensive planning goals of Walton County as expressed in its Evaluation and Appraisal Report (EAR). The EAR commends WRP's efforts to fully analyze the alternative sources and its selection of the Rock Hill area on which to site a remote wellfield. Non-Interference with Existing Legal Users WRP purchased 5,000 acres on which to site its wellfield so that pumping from the well sites would not adversely affect adjacent landowners, and the majority of the drawdown would basically be confined to the property. Pertinent District rules only require that an applicant consider existing legal uses of water. However, WRP considered all existing legal uses of water and their future increases until the year 2018, and these existing and potential impacts were considered in its groundwater model. Even with the anticipated pumpage in the year 2018, the potentiometric surface at the WRP wellfield site location will not be drawn below sea level. The water level drawdowns associated with the withdrawal do not constitute a harm, they can be remedied, and the permit has been conditioned to provide for those remedies. For example, Standard Condition 11 and Specific Condition 17 provide protection to domestic wells users in the area. They should specifically address the legitimate concerns of public witnesses who testified at hearing. The Local Sources First Statutory Provision Section 373.223(3), Florida Statutes, (Supp. 1998), also known as the local sources first statutory provision, enumerates a number of factors which the District must consider when evaluating whether a proposed use of water is consistent with the public interest. However, the law provided that water use permit applications pending with the District as of April 1, 1998, were exempted. The legislation was not enacted until October 1, 1998, and the notice of proposed agency action on the instant permit was issued in June 1998. Therefore, the District took the position that the legislation does not apply to the WRP permit. In an abundance of caution, however, the District reviewed the application as if the local sources first exception applied, and then again as if the exception did not apply. Under either scenario, the District concluded that the application met the criteria enumerated by the law. Assuming arguendo that the new law applies, WRP has met all criteria necessary for the issuance of a permit. The proposed wellfield site is the best suitable site to move water withdrawals inland away from the coastal area, and other locations closer to the coast would have resulted in interference and impacts; there are no other impoundments in the vicinity of the proposed wellfield site that are technically and economically feasible for the proposed use; there are no economically and technically feasible alternatives to the proposed source; there are no potential environmental impacts from the wellfields; there are no adequate existing sources of water available on the peninsula; the District has had numerous interactions with area local governments; and the District did not allow WRP's investment in 4,900 acres of land to influence its decision. Standing The only alleged basis for standing which went to fact finding at hearing was an allegation in paragraph (5)(a) of the Petition that "[t]he withdrawal of up to 4.8 million gallons per day of groundwater by WRP will adversely impact the quantity and quality of groundwater available for withdrawal by Petitioners." As to RU, which currently serves 500 customers representing a population of 17,000, it has no wells in the vicinity of WRP's proposed wellfield; its wellfields are located along the coastal area of Highway 30-A from Santa Rosa Beach to the east of Inlet Beach, on the Bay County line, or some twenty- five to thirty miles south of the proposed wellfield. It also purchases 500,000 gallons of water per day from the City of Freeport to meet its customers' demand. Because of RU's own continued pumping, at least four of its coastal wells are "going bad" due to saltwater intrusion and upconing. This condition will continue to occur even if WRP's application is not granted. Although it has a permit application for new inland wellfields pending with the District, at the time of hearing the application was incomplete and is therefore irrelevant to a standing determination. There was no direct evidence that RU's coastal wellfields will be adversely affected by WRP's proposed operation. Indeed, the projected decline in water levels in that area will be less than one foot and will have a de minimus impact. As to Walton County, it owns the land on which RU's coastal wells are located as well as the production facilities. Under a lease agreement between those parties, RU operates the system. The County also had one small exempt well in the vicinity of WRP's proposed wellfields which was installed after this case was filed, but shortly before the hearing began. There was no evidence as to the depth of the well, the source of water, or the well's pumping capacity. Likewise, there was no evidence that the well has actually been used. In addition, there was no evidence that the County relies on groundwater from the Floridan Aquifer to supply potable water to its citizens or customers, or that WRP's proposed withdrawal will adversely impact the quantity or quality of groundwater available for withdrawal by the County. As to the City of DeFuniak Springs, it operates its own public water supply system serving approximately 17,200 persons. It has four water supply wells located approximately nine miles north of WRP's proposed wellfields, and upstream from WRP's site. WRP's model predicts that the City's wellfields will be impacted, albeit very slightly, by WRP's pumping over the lifetime of the proposed permit. To this limited extent, the proposed activity affects its substantial interests. Finally, the City of Freeport owns and operates its own public water supply utility. It has existing wells which are permitted by the District and which lie five miles directly south of WRP's proposed wellfield. Like the City of DeFuniak Springs, the City of Freeport will also experience drawdown impacts, although not considered significant, over the lifetime of the proposed permit. To this extent, the permit will impact the City of Freeport. This is true in spite of the City's admission that its principal concern in this case is WRP's intention to sell water to customers outside Walton County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED that the Northwest Florida Water Management District enter a Final Order granting Consumptive Water Use Permit No. I05349 to WRP, Inc., as proposed in its Notice of Proposed Agency Action issued on June 5, 1998. DONE AND ENTERED this 22nd day of April, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1999. Douglas E. Barr, Executive Director Northwest Florida Water Management District Route 1, Box 3100 Havana, Florida 32333-9700 Douglas P. Manson, Esquire Jack R. Pepper, Jr., Esquire 712 South Oregon Avenue Tampa, Florida 33606-2543 George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433-0687 Clayton J. M. Adkinson, Esquire Post Office Box 1207 DeFuniak Springs, Florida 32435-1207 Douglas L. Stowell, Esquire Stephen L. Spector, Esquire Post Office Box 11059 Tallahassee, Florida 32302-3059 Kenneth G. Oertel, Esquire Segundo J. Fernandez, Esquire Post Office Box 1110 Tallahassee, Florida 32302-1110 Paul R. Bradshaw, Esquire 1345 Dupont Road Havana, Florida 32333
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
The Issue Whether proposed Water Use Permits Nos. 20012236.000 (the Potable Water Permit) and 20012239.000 (the Irrigation Permit) and proposed Environmental Resource Permit No. 43020198.001 (the ERP) should be issued by the Respondent, Southwest Florida Water Management District (the District).
Findings Of Fact The Parties The individual Petitioners, Farnsworth, Roop, and Varnum are all Florida citizens and residents of Sumter County. None of the individual Petitioners offered any evidence relating to direct impacts that the ERP would have on their property. With respect to the Potable Water and Irrigation Permits, anecdotal testimony was presented by Petitioners and Wing and Weir relating to well failures and sinkholes in the area. Two Petitioners, Roop and Varnum, live in close proximity to the property encompassed by the three permits. Petitioner Farnsworth’s property is approximately three and a half miles from the project boundary. Wing and Weir live approximately four and a half to five and 18 miles from the project site, respectively. SCAID is a Florida not-for-profit corporation that has approximately 130 members. Farnsworth, the president of SCAID, identified only Roop and Varnum as members who will be directly affected by the activities to be authorized by the permits. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. The Utility and the Authority are limited liability companies, of which the Villages Inc. is the managing partner. The Villages Inc. is a Florida corporation. The Utility, which will serve as a provider of potable water, is regulated by the Public Service Commission, while the Authority which will provide irrigation water, is not. The Villages Inc., Development The Villages Inc. is a phased, mixed use, retirement community, which is located at the intersecting borders of Lake, Marion, and Sumter Counties. Development has been on going since at least 1983, with a current planning horizon of the year 2019. Currently, there are 15,362 constructed dwelling units in the built-out portion of the Villages Inc. that are located in Lake County and the extreme northeast corner of Sumter County. The portion located in Marion County is 60 percent complete, with 750 homes completed and another 600 under construction. Approximately another 22,000 residences are planned for development in Sumter County by the year 2012, with an additional 10,200 by the year 2019. However, the Potable Water and Irrigation Permits are only for a six-year duration, and the ERP has a duration of only six years. None of the permits authorize development activities beyond that time frame. Generally speaking, the three permits at issue include an area owned by the Villages Inc. that lies in northeast Sumter County South of County Road 466 and North of County Road 466A. However, it is not projected that this entire area will be built-out during the terms of three proposed permits. Area Hydrology and Topography In the area of the Villages Inc., there is a layer of approximately five to ten feet of sand at the land surface, which is underlain by ten to 70 feet of a clayey sand. Both of these constitute the surficial aquifer and are extremely leaky, allowing water to percolate easily through to a lower layer. Except in the vicinity of Lake Miona, there is no water in the surficial aquifer except after rainfall events. The clayey sand layer is underlain by the Upper Floridan, a limestone unit. The top of this limestone layer ("the top of the rock") occurs at fluctuating depths of between 30 and 70 feet. At approximately 350 to 400 feet below the land surface, there begins a transition to a denser unit that serves as a confining layer between the Upper Floridan production zone and the Lower Floridan production zone. This confining layer, which was confirmed by drilling at three locations in the Villages Inc. is approximately 150 feet thick in the area of the Villages Inc. Another transition, this time to a less dense formation, begins at approximately 550 to 600 feet, which is considered the top of the Lower Floridan production zone. While testing conducted on the project site indicated almost no leakage between the Upper and Lower Floridan production zones, it is generally known by experts that there is some exchange of water between the two layers. Both the Upper and the Lower Floridan contain water that meets potable water standards and both are considered water production zones. The water quality of the two zones is not significantly different. The project area is prone to karst activity, that is, the formation of sinkholes. Sinkholes are formed as a result of the collapse of the overburden above subsurface cavities which have been formed through a very gradual dissolution of limestone, thus resulting in a "sink" at the land surface. Surface water bodies in the area include Lake Miona, Black Lake, Cherry Lake, and Dry Prairie, as well as several other small wetlands. The Potable Water and Irrigation Permits The potable water permit is for the withdrawal from the Upper Floridan Aquifer of 1.164 million gallons of water per day (MGD), on an annual average, for potable use in residences and both commercial and recreational establishments. It also limits the maximum withdrawal during peak months to 2.909 MGD. The Irrigation Permit is for the withdrawal from the Lower Floridan Aquifer of 2.850 MGD, on an annual average, for use in irrigation. The peak month usage rate permissible under the proposed permit would be 9.090 MGD. Water withdrawal under the Irrigation Permit will be used for the irrigation of residential lawns, common areas, commercial landscaping, and golf courses. Modeling of Drawdowns In assessing the impacts of proposed water withdrawals from an aquifer, District personnel considered effects on the aquifers and on-surface water features in the area. Computer- generated models of the predicted effects of the Potable Water and Irrigation Permits withdrawals provided one of the principal bases for this assessment. The primary geologist assigned to review the permit applications reviewed two of the models submitted by the Utility and the Authority (jointly the WUP Applicants) and ran one personal model of her own in order to predict the effects of the proposed withdrawals on the aquifers, as well as on any wetlands and other surface water bodies. In particular, the models predict both the vertical and horizontal extent to which the withdrawals may lower the level of water within the aquifers and in-surface waters under various conditions. One of the models submitted by the WUP Applicants predicted drawdowns during a 90-day period of no rainfall while the other predicted the impacts of the withdrawals over the life of the permits, considered cumulatively with the effects of withdrawals from the already-existing Villages' development in Sumter, Marion, and Lake Counties. The District’s geologist modeled the impacts of the withdrawals over the life of the permits and included the cumulative effects of all of the current Villages' withdrawals in Sumter County. All of these models included the combined effects of both the proposed Potable Water and the Irrigation Permits. Based upon these models, it is concluded that there will be no significant drawdowns as a result of the withdrawals authorized by the proposed water use permits. Specifically, the only predicted drawdown in the surficial aquifer (0.25 feet of drawdown) is in an area where there are no natural surface water features. Drawdown in the Upper Floridan is predicted at between 0.1 and 0.2 feet, while the drawdown in the Lower Floridan is predicted at a maximum of 1.5 feet. These minor drawdowns are not expected to cause any adverse impacts. Transmissivity is the rate at which water moves horizontally through the aquifer. In areas with high transmissivity, the results of water withdrawals from an aquifer will generally be low in magnitude, but broad in lateral extent. Water withdrawals from areas of low transmissivity will result in cones of depression that are more limited in lateral extent, but steeper vertically. The use of too high a transmissivity rate in a model, would overpredict the horizontal distance of the drawdowns caused by withdrawals, but would underpredict the vertical drawdown in the immediate vicinity of the withdrawal. Conversely, use of too low a transmissivity would over-predict the effects in the immediate vicinity of the withdrawal but underpredict the lateral extent of the drawdown. The WUP Applicants’ models used a transmissivity value for the Lower Floridan Aquifer of 100,000 feet squared per day ("ft.2/d'). The WUP Applicants’ consultant derived the transmissivity values from a regional model prepared by the University of Florida. The regional model uses a transmissivity value for the entire region of 200,000 ft.2/d for the Lower Floridan. While that transmissivity is appropriate for assessing large-scale impacts, on a more localized level, the transmissivity of the aquifer may be lower. Therefore, the WUP Applicants’ consultant met with District representatives and agreed to use a value half that used in the University of Florida model. A similar approach was used for the transmissivity value used in modeling effects in the Upper Floridan. Notably, specific transmissivity values recorded in four wells in the Villages Inc. area were not used because two of these wells were only cased to a depth of just over 250 feet, with an open hole below that to a depth of 590 feet. Thus, the transmissivity measured in these wells reflect conditions in the confining layer at the immediate location of the wells - not the transmissivity of the Lower Floridan production zone. Further, site-specific information on transmissivity, measured during pump tests at individual wells, does not correlate well to the transmissivity of the aquifer, even at short distances from the well. Transmissivities measured at individual wells are used to determine the depth at which the pump should be set in the well, not to determine the transmissivity of the aquifer. Thus, the use of transmissivities derived from the regional model, but adjusted to be conservative, is entirely appropriate. Moreover, using a transmissivity in her modeling of the project impacts of 27,000 ft.2/d for the Lower Floridan Aquifer, the district geologist’s model predicted no adverse impacts. Leakance is the measure of the resistance of movement vertically through confining units of the aquifer. The leakance value used by the District for the confining layer between the Upper and Lower Floridan was taken from the University of Florida model. Tests conducted on the site actually measured even lower leakance values. Thus, the evidence establishes that the leakance value used in the WUP Applicants’ and the District’s modeling for the Floridan confining layer was reasonable and appropriate. Competent, substantial evidence also establishes that the leakance value used for Lake Miona was reasonable. The WUP Applicants submitted to the District substantial data, gathered over several years, reflecting the balance of water flowing into Lake Miona and the lake’s levels in relation to the potentiometric surface. This documentation verified the leakance value used for Lake Miona in the modeling. Finally, the District modeling used appropriate boundary condition parameters. The District modeling used what is known as the "constant head" boundary and assumes the existence of water generated off-site at the boundaries. Such a boundary simulates the discharge of the aquifer at a certain level. The use of constant head boundaries is an accepted practice. The modeling conducted on behalf of the District and the Applicants provides a reasonable assurances that the Potable Water and Irrigation Permits will not cause adverse water quality or quantity changes to surface or groundwater resources, will not cause adverse environmental impacts to natural resources, and will not cause pollution of the aquifer. Furthermore, because the predicted drawdowns are so insignificant, reasonable assurances have been provided that the withdrawals will not adversely impact existing off-site land uses or existing legal withdrawals. The modeling also provides reasonable assurances that the withdrawals will not be harmful to the water resources of the District. Moreover, monitoring requirements included in the proposed Potable Water and Irrigation Permits provide additional reasonable assurance that – should the withdrawal effects exceed those predicted by the modeling – such effects are identified and necessary steps are taken to mitigate for any potential impacts. The District has reserved the right to modify or revoke all or portions of the water use permits under certain circumstances. Specifically, the proposed Potable Water Permit requires a monitoring plan that includes the following pertinent provisions: There shall be no less than three control wetland and ten onsite wetland monitoring sites; A baseline monitoring report, outlining the current wetland conditions; * * * A statement indicating that an analysis of the water level records for area lakes, including Miona Lake, Black Lake, Cherry Lake, Lake Deaton and Lake Griffin, will be included in the annual report; A statement indicating that an analysis of the spring flow records for Gum Spring, Silver Spring, and Fenney Spring, will be included in the annual report; * * * Wildlife analyses for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods to determine success of the mitigation; A mitigation plan for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods and thresholds to determine success of the mitigation; An annual report of an analysis of the monitoring data . . . . Similar provisions are included in the proposed irrigation permit. The WUP Applicants, in conjunction with the District, have developed sites and methodologies for this monitoring. Reasonable Demand The water to be withdrawn under the proposed Potable Water Permit will serve 10,783 people. This total results from the simple multiplication of the number of residences to be built during the next six years (5,675) by the average number of residents per household (1.9). Those numbers are based upon historical absorption rates within the Villages Inc. development since 1983, an absorption rate that doubles approximately every five years. The Utility proposed a per capita use rate of 108 gallons per day for potable use only. District personnel independently verified that per capita rate, based upon current usage in the existing portions of the Villages Inc. and determined that the rate was reasonable. Based upon the population projections and the per capita rate, the District determined that there is a reasonable demand for the withdrawal of the amount of water, for potable purposes, that is reflected in the Potable Water Permit. The Utility has provided reasonable assurance regarding the Utility’s satisfaction of this permitting criterion. As to the irrigation permit, the Villages Inc. plans, within the next six years, to complete the construction of 1,911 acres of property that will require irrigation. The amount of water originally requested by the Authority for irrigation withdrawals was reduced during the course of the application process at the request of the District. The District determined the reasonable amount of irrigation water needed through the application of AGMOD, a computer model that predicts the irrigation needs of various vegetative covers. Since the Authority intends to utilize treated wastewater effluent as another source of irrigation water, the District reduced the amount of water that it would permit to be withdrawn from the Lower Floridan for irrigation. The District, thus, determined that the Authority would need 1.59 MGD annual average for recreational and aesthetic area irrigation and 1.26 MGD annual average for residential lawn irrigation, for a total of 2.85 MGD. The Villages Inc. also plans to accumulate stormwater in lined ponds for irrigation use. However, unlike its treatment of wastewater effluent, the District did not deduct accumulated stormwater from the amount of water deemed necessary for irrigation. This approach was adopted due to the inability to predict short-term rainfall amounts. The uncontroverted evidence of record establishes reasonable assurances that there is a reasonable demand for the amount of water to be withdrawn under the proposed irrigation permit. Conservation and Reuse Measures Both the Utility and the Authority applications included proposed measures for the conservation and reuse of water. The conservation plan submitted in conjunction with the irrigation permit application provides for control valves to regulate both the pressure and timing of irrigation by residential users; contractual restrictions on water use by commercial users; xeriscaping; and an irrigation control system for golf course irrigation that is designed to maximize the efficient use of water. In addition, in the proposed permits, the District requires the Utility and the Authority to expand upon these conservation measures through such measures as educational efforts, inclined block rate structures, and annual reporting to assess the success of conservation measures. The Authority also committed to reduce its dependence on groundwater withdrawals through the reuse of wastewater effluent, both from the on-site wastewater treatment facility and through contract with the City of Wildwood. Reasonable assurances have been provided that conservation measures have been incorporated and that, to the maximum extent practicable, reuse measures have been incorporated. Use of Lowest Available Quality of Water In addition to the reuse of treated wastewater effluent, the Authority intends to minimize its dependence on groundwater withdrawals for irrigation use through the reuse of stormwater accumulated in lined ponds. Thirty-one of the lined stormwater retention ponds to be constructed by the Villages Inc. are designed as a component of the irrigation system on-site. Ponds will be grouped with the individual ponds within each group linked through underground piping. There will be an electronically controlled valve in the stormwater pond at the end of the pipe that will be used to draw out water for irrigation purposes. These lined stormwater ponds serve several purposes. However, the design feature that is pertinent to the reuse of stormwater for irrigation is the inclusion of additional storage capacity below the top of the pond liner. No groundwater will be withdrawn for irrigation purposes unless the level of stormwater in these lined ponds drops below a designed minimum irrigation level. Groundwater pumped into these ponds will then be pumped out for irrigation. Thus, the use of groundwater for irrigation is minimized. The Authority has met its burden of proving that it will use the lowest quality of water available. With respect to the potable permit, the evidence establishes that there are only minor differences between the water quality in the Upper Floridan and Lower Floridan in this area. The Upper Floridan is a reasonable source for potable supply in this area. Thus, reasonable assurances have been provided by the Utility that it will utilize the lowest water quality that it has the ability to use for potable purposes. Waste of Water In regard to concerns that the design of the Villages Inc.'s stormwater/irrigation system will result in wasteful losses of water due to evaporation from the surface of the lined ponds, it must be noted that there are no artesian wells relating to this project and nothing in the record to suggest that the groundwater withdrawals by either the Utility or the Authority will cause excess water to run into the surface water system. Additionally, the evidence establishes that, to the extent groundwater will be withdrawn from the Lower Floridan and pumped into lined stormwater ponds, such augmentation is not for an aesthetic purpose. Instead, the groundwater added to those ponds will be utilized as an integral part of the irrigation system and will be limited in quantity to the amount necessary for immediate irrigation needs. Finally, the water to be withdrawn will be put to beneficial potable and irrigation uses, rather than wasteful purposes. Under current regulation, water lost from lined stormwater ponds through evaporation is not considered as waste. Thus, the Authority and the Utility have provided reasonable assurances that their withdrawals of groundwater will not result in waste. The ERP The stormwater management system proposed by the Villages Inc. will eventually serve 5,016 acres on which residential, commercial, golf course, and other recreational development will ultimately be constructed. However, the proposed permit currently at issue is preliminary in nature and will only authorize the construction of stormwater ponds, earthworks relating to the construction of compensating flood storage, and wetland mitigation. Water Quality Impacts The stormwater management system will include eight shallow treatment ponds that will be adjacent to Lake Miona and Black Lake and 45 lined retention ponds. Thirty-one of these lined ponds will serve as part of the irrigation system for a portion of the Villages Inc.'s development. All of these ponds provide water quality treatment. The unlined ponds will retain the first one inch of stormwater and then overflow into the lakes. The ponds provide water quality treatment of such water before it is discharged into the lakes. The water quality treatment provided by these ponds provides reasonable assurances that the project will not adversely impact the water quality of receiving waters. While they do not discharge directly to surface receiving waters, the lined retention ponds do provide protection against adverse water quality impacts on groundwater. There will be some percolation from these ponds, from the sides at heights above the top of the liner. However, the liners will prevent the discharge of pollutants through the highly permeable surface strata into the groundwater. The Villages Inc. designed the system in this manner in response to concerns voiced by the Department of Environmental Protection during the DRI process regarding potential pollutant loading of the aquifer at the retention pond sites. Furthermore, by distributing the accumulated stormwater - through the irrigation system - over a wider expanse of vegetated land surface, a greater degree of water quality treatment will be achieved than if the stormwater were simply permitted to percolate directly through the pond bottom. There is no reasonable expectation that pollutants will be discharged into the aquifer from the lined ponds. If dry ponds were used, there would be an accumulation of pollutants in the pond bottom. These measures provide reasonable assurances that there will be no adverse impact on the quality of receiving waters. Water Quantity Impacts With regard to the use of lined retention ponds, as part of the Villages Inc.’s stormwater system and the impact of such ponds on water quantity, the evaporative losses from lined ponds as opposed to unlined ponds is a differential of approximately one (1) inch of net recharge. The acreage of the lined ponds - even measured at the very top of the pond banks - is only 445 acres. That differential, in terms of a gross water balance, is not significant, in view of the other benefits provided by the lined ponds. As part of the project, wetlands will be created and expanded and other water bodies will be created. After rainfalls, these unlined ponds will be filled with water and will lose as much water through evaporation as would any other water body. The design proposed by the Villages Inc., however, will distribute the accumulated stormwater across the project site through the irrigation of vegetated areas. The documentation submitted by the Villages Inc. establishes that the ERP will not cause adverse water quantity impacts. The Villages Inc. has carried its burden as to this permitting criterion. Flooding, Surface Water Conveyance, and Storage Impacts Parts of the project are located in areas designated by the Federal Emergency Management Administration (FEMA) as 100-year flood zones. Specifically, these areas are located along Lake Miona, Black Lake, between Black Lake and Cherry Lake, and at some locations south of Black Lake. Under the District’s rules, compensation must be provided for any loss of flood zone in filled areas by the excavation of other areas. The District has determined, based upon the documentation provided with the Villages Inc.’s application, work on the site will encroach on 871.37 acre feet of the FEMA 100-year flood zone. However, 1,051.70 acre feet of compensating flood zone is being created. The Villages Inc. proposes to mitigate for the loss of flood zone primarily in the areas of Dry Prairie and Cherry Lake. At present, Cherry Lake is the location of a peat mining operation authorized by DEP permit. Mining has occurred at that site since the early 1980s. The flood zone mitigation proposed by the Villages Inc. provides reasonable assurance that it will sufficiently compensate for any loss of flood basin storage. The Villages Inc.'s project provides reasonable assurance that it will neither adversely affect surface water storage or conveyance capabilities, surface or groundwater levels or surface water flows nor cause adverse flooding. Each of the 45 retention ponds to be constructed on-site will include sufficient capacity, above the top of the pond liner, to hold a 100-year/24-hour storm event. This includes stormwater drainage from off-site. In addition, these ponds are designed to have an extra one foot of freeboard above that needed for the 100-year/24-hour storm, thus providing approximately an additional 100 acres of flood storage beyond that which will be lost through construction on-site. Furthermore, the Villages Inc. has proposed an emergency flood plan. In the event of a severe flood event, excess water will be pumped from Dry Prairie, Cherry Lake, and Lake Miona and delivered to the retention ponds and to certain golf course fairways located such that habitable living spaces would not be endangered. Environmental Impacts and Mitigation There are 601 acres of wetlands and surface waters of various kinds in the Villages Inc.’s project area. Forty-one acres of wetlands will be impacted by the work that is authorized under the ERP. Each of these impacted wetlands, along with the extent of the impact, is listed in the ERP. The impacts include both fill and excavation and all will be permanent. When assessing wetland impacts and proposed mitigation for those impacts, the District seeks to ensure that the activities proposed will not result in a net loss of wetland functionality. The object is to ensure that the end result will function at least as well as did the wetlands in their pre-impact condition. Functional value is judged, at least in part, by the long term viability of the wetland. While small, isolated wetlands are not completely without value, large wetland ecosystems – which are less susceptible to surrounding development – generally have greater long-term habitat value. The District’s policy is that an applicant need not provide any mitigation for the loss of habitat in wetlands of less than 0.5 acre, except under certain limited circumstances, including where the wetland is utilized by threatened or endangered species. Some wetlands that will be impacted by the Villages Inc.’s project are of high functional value and some are not as good. The Villages Inc. proposes a variety of types of mitigation for the wetlands impacts that will result from its project, all of which are summarized in the ERP. In all, 331.55 acres of mitigation are proposed by the Villages Inc. First, the District proposes to create new wetlands. Approximately 11 acres of this new wetland will consist of a marsh, which is to be created east of Cherry Lake. Second, it proposes to undertake substantial enhancement of Dry Prairie, a 126-acre wetland. Currently – and since at least the early nineties – Dry Prairie received discharge water from the peat mining operation at Cherry Lake. Without intervention, when the mining operations stop, Dry Prairie would naturally become drier than it has been for several years and would lose some of the habitat function that it has been providing. The Villages Inc.’s proposed enhancement is designed to match the current hydroperiods of Dry Prairie, thus ensuring its continued habitat value. Third, the Villages Inc. has proposed to enhance upland buffers around wetlands and surface waters by planting natural vegetation, thus providing a natural barrier. Placement of these buffers in conservation easements does not provide the Villages Inc. with mitigation credit, since a 25-foot buffer is required anyway. However, the District determined that the enhancement of these areas provided functional value to the wetlands and surface waters that would not be served by the easements alone. Fourth, the Villages Inc. will place a conservation easement over certain areas, including a 1500-foot radius preserve required by the Fish and Wildlife Conservation Commission (FWCC) around an identified eagles’ nest. These areas will also be used for the relocation of gopher tortoises and, if any are subsequently located, of gopher frogs. While the Villages Inc. is also performing some enhancement of this area, it will receive no mitigation credit for such enhancement – which was required to meet FWCC requirements. However, since the conservation easement will remain in effect in perpetuity, regardless of whether the eagles continue to use the nest, the easement ensures the continued, viability of the area’s wetlands and provides threatened and endangered species habitat. In order to provide additional assurances that these mitigation efforts will be successful, the District has included a condition in the proposed permit establishing wetland mitigation success criteria for the various types of proposed mitigation. If these success criteria are not achieved, additional mitigation must be provided. With the above described mitigation, the activities authorized under the ERP will not adversely impact the functional value of wetlands and other surface waters to fish or wildlife. The Villages Inc. has met its burden of providing reasonable assurances relating to this permit criterion. Capability of Performing Effectively The Villages Inc. has also provided reasonable assurances that the stormwater management system proposed is capable of functioning as designed. The retention ponds proposed are generally of a standard-type design and will not require complicated maintenance procedures. In its assessment of the functional capability of the system, the District did not concern itself with the amount of stormwater that the system might contribute for irrigation purposes. Rather, it focused its consideration on the stormwater management functions of the system. The question of the effectiveness of the system for irrigation purposes is not relevant to the determination of whether the Villages Inc. has met the criteria for permit issuance. Consequently, the record establishes that the documentation provided by the Villages Inc. contains reasonable assurances that the stormwater system will function effectively and as proposed. Operation Entity The Villages Inc. has created Community Development District No. 5 (CDD No. 5), which will serve as the entity responsible for the construction and maintenance of the stormwater system. CDD No. 5 will finance the construction through special revenue assessment bonds and will finance maintenance through the annual assessments. Similar community development districts were established to be responsible for earlier phases of the Villages Inc. The ERP includes a specific condition that, prior to any wetlands impacts, the Villages Inc. will either have to provide the District with documentation of the creation of a community development district or present the District with a performance bond in the amount of $1,698,696.00. Since the undisputed testimony at hearing was that CDD No. 5 has, in fact, now been created, there are reasonable assurances of financial responsibility. Secondary and Cumulative Impacts The Villages Inc.’s application also provides accurate and reliable information sufficient to establish that there are reasonable assurances that the proposed stormwater system will not cause unacceptable cumulative impacts upon wetlands or other surface waters or adverse secondary impacts to water resources. The system is designed in a manner that will meet water treatment criteria and there will be no secondary water quality impacts. Further, the use of buffers will prevent secondary impacts to wetlands and wetland habitats and there will be no secondary impacts to archeological or historical resources. In this instance, the stormwater system proposed by the Villages Inc. will function in a manner that replaces any water quantity or water quality functions lost by construction of the system. In its assessment of the possible cumulative impacts of the system, the District considered areas beyond the bounds of the current project, including the area to the south that is currently being reviewed under the DRI process as a substantial deviation. The District’s environmental scientist, Leonard Bartos, also reviewed that portion of the substantial deviation north of County Road 466A, in order to determine the types of wetlands present there. Furthermore, the District is one of the review agencies that comments on DRI and substantial deviation applications. When such an application is received by the District’s planning division, it is routed to the regulatory division for review. The District includes its knowledge of the DRIs in its determination that there are no cumulative impacts. Reasonable assurances have been provided as to these permitting criteria. Public Interest Balancing Test Because the proposed stormwater system will be located in, on, and over certain wetlands, the Villages Inc. must provide reasonable assurances that the system will not be contrary to the public interest. This assessment of this permitting criteria requires that the District balance seven factors. While the effects of the proposed activity will be permanent, the Villages Inc. has provided reasonable assurances that it will not have an adverse impact on the public health, safety, or welfare; on fishing or recreational values; on the flow of water; on environmental resources, including fish and wildlife and surface water resources; or on off-site properties. Furthermore, the District has carefully assessed the current functions being provided by the affected wetland areas. With respect to historical or archeological resources, the Villages Inc. has received letters from the Florida Department of State, Division of Historical Resources, stating that there are no significant historical or archeological resources on the project site that is the subject of this permit proceeding. Thus, the evidence establishes reasonable assurances that the Villages Inc.'s stormwater system will not be contrary to the public interest. Additionally, the District and Applicant presented uncontroverted evidence that the proposed project will not adversely impact a work of the District, and that there are no applicable special basin or geographic area criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered issuing Water Use Permit Nos. 20012236.000 and 20012239.000 and Environmental Resource Permit No. 43020198.001, in accordance with the District’s proposed agency action. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002.
Findings Of Fact Application No. 76-00292 is for a consumptive use permit for one well located in the Green Swamp, Lake County. The water withdrawn is to be used for industrial purposes. The application seeks a total withdrawal of 3.642 million gallons per day average annual withdrawal and 5.112 million gallons maximum daily withdrawal. This withdrawal will be from one well and a dredge lake and constitutes in its entirety a new use. The consumptive use, as sought, does not exceed the water crop as defined by the district nor otherwise violate any of the requirements set forth in Subsections 16J-2.11(2) , (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends issuance of a permit with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on the subject well. The applicant shall record the pumpage from the subject well on a weekly basis and submit a record of that pumpage to the district quarterly beginning on January 15, 1977. The permit shall expire on December 31, 1980. The procedural requirements of Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto, have been complied with as they pertain to this application. The intended consumptive use appears to be a reasonable, beneficial use which is consistent with the public interest and will not interfere with any legal use of water existing at the time of the application.
Recommendation It is hereby RECOMMENDED that a consumptive water use permit in the amounts and manner sought for by the subject application be issued subject to the conditions set forth in paragraph 3 above. ENTERED this 5th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Florida Rock Industries, Inc. Staff Attorney Post Office Box 4667 Southwest Florida Water Jacksonville, Florida Management District Post Office Box 457 Brooksville, Florida 33512
