Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue Whether Respondent, John J. D'Hondt, as a licensed operator, should be disciplined for violations of Florida Administrative Code Rule 62-602.650(2), (4) and (4)(f).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is the State agency vested with the responsibility of regulating Florida's air and water resources, administering Chapter 403, Florida Statutes (2006), and the rules promulgated in Florida Administrative Code Rule Chapter 62. Petitioner has the statutory authority to establish qualifications; examine and license drinking water and domestic wastewater treatment plant operators and to place an operator on probation; and issue, deny, revoke, or suspend an operator's license pursuant to its rules. Respondent is the owner, supplier of water, and licensed operator of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants located in Volusia County, Florida. He holds Certified Operator Drinking Water License No. 0000542 and Certified Operator Wastewater License No. 0006032. The Volusia County Health Department is a county health department that has been approved by Petitioner pursuant to Subsection 403.862(1)(c), Florida Statutes (2006), to enforce Chapter 403, Florida Statutes (2006), and the rules promulgated for the State's drinking water program for Volusia County. As a result of not having received Respondent's September 2004 MOR, by letter dated October 20, 2004, the Volusia County Health Department notified Respondent that MORs were to be submitted to the Volusia County Health Department by the tenth of the month following the month of operation. The November 2004 MOR was to have been submitted to the Volusia County Health Department by December 10, 2004. Respondent signed and dated the November 2004 MOR on December 12, 2004; it was received by the Volusia County Health Department on December 27, 2004. The December 2004 MOR was to have been submitted to the Volusia County Health Department by January 10, 2005. On February 4, 2005, Respondent was sent a late reporting violation letter stating that the December 2004 MOR had not been received. This letter again reminded Respondent that MORs were to be submitted within ten days after the month of operation. The December 2004 MOR was received on February 11, 2005. The April 2005 MOR was to have been submitted by May 10, 2005. Respondent signed and dated the April 2005 MOR on May 17, 2005. It was received on May 27, 2005. The September 2005 MOR was to have been submitted by October 10, 2005. It was received on October 18, 2005. The November 2005 MOR was to have been submitted by December 10, 2005. It was signed and dated December 14, 2005, and received on December 19, 2005. Respondent did not timely submit MORs for the months of November 2004, December 2004, April 2005, September 2005, and November 2005. In 2004, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent maintained a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was informed that he was required to keep a separate operation and maintenance logbook for each of the drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that there was a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was again informed that he was required to keep separate logbooks for each plant. A non-compliance letter dated October 12, 2004, and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he needed to separate his operation and maintenance logbook. In 2005, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined logbook for the drinking water and domestic wastewater treatment plants. During the inspection, Respondent was again informed that he was required to keep a separate operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was keeping a combined logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to keep separate logbooks. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent again informing him that he was required to maintain separate logbooks for the drinking water and domestic wastewater treatment plants. On February 13, 2006, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to maintain a separate logbook for each plant. Over the extended period reflected by the inspections cited in paragraphs 11 through 15, Respondent failed to maintain separate logbooks for the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that the logbook did not contain sufficient entries of the performance of preventative maintenance and repairs or request for repairs of equipment. During this inspection, Respondent was informed that he was required to keep adequate entries of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. A non-compliance letter and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he was required to maintain entries of the performance of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was not keeping adequate entries of the performance of preventative maintenance or repairs for the domestic wastewater plant. During this inspection, Respondent was again informed that he was to keep such entries. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent informing him that he needed to maintain such entries for the domestic wastewater treatment plant. Photocopies of the combined logbook have essentially no entries for the performance of preventative maintenance or repairs or requests for repairs to a domestic wastewater treatment plant. Infrequent margin notes are not decipherable and do not differentiate between the two activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of John J. D'Hondt, as a Certified Operator Drinking Water and a Certified Operator Wastewater, be disciplined as set forth in the "probation" letter of March 15, 2006. DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of February, 2007. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John J. D'Hondt 2 Tropic Wind Drive Port Orange, Florida 32128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, Acting General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Petitioner's water supply system that supplies water to residents of Cypress Knee Cove comes under the jurisdiction of the Respondent and, if so, is the level of Ethylene dibromide (EDB) in the water supplied by Petitioner an imminent hazard to the residents of Cypress Knee Cove.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. Petitioner George T. Donaldson owns and operates Cypress Knee Cove Mobile Home Park (Park) a residential mobile home park located at 3300 Canal Road, Lake Wales, Polk County, Florida. Petitioner owns and operates a water system providing piped water for consumption and use by the residents of the Park. The water system uses a groundwater source and can have up to 32 connections. The water system is presently connected to 27 mobile homes. Of those 27 mobile homes, one is vacant, 11 are used year-round, 15 are used seasonally. Of those being used seasonally, four are being used six months or more out of the year. Nineteen residents live in the 11 mobile homes used year-round and eight residents live in the four mobile homes 6 months or more out of the year. There are a total of 46 residents living in the Park during the year. The balance of the residents live in the Park less than 6 months out of the year. All of the mobile homes at the Park are permanently mounted and remain on the lots year-round. Twenty-five of the mobile homes in the Park are privately owned by residents of the Park and are available for year-round occupancy by the owner. Sampling for EDB from Petitioner's water system at the Park are done by the Department of Health and Rehabilitative Services, Polk County Health Unity (PCHU) on March 14, 1984 and the samples analyzed by the University of Florida (UF) for EDB. The UF reported EDB concentration of 0.02756 ppb. No samples of water from Petitioner's water system at the Park were collected by PCHU for testing for EDB from March 14, 1984 and until April 4, 1988. The PCHU began sampling Petitioner's water system at the Park again in April, 1988 and submitting those samples to the Department of Health and Rehabilitative Services (HRS) state certified laboratory in Jacksonville, Florida for analysis. The following are the results of those tests: Date of Sampling EDB Level April 4, 1988 below detectable level of 0.02 ppb - BDL August 17, 1988 0.17 ppb October 5, 1988 unconfirmed positive- resample November 7, 1988 0.058 ppb November 22, 1988 BDL-analytical problem- resample December 1, 1988 BDL January 4, 1989 0.062 ppb *January 18, 1989 0.070 ppb July 26, 1990 0.058 ppb *split sample with P.E. LaMoreaux and Associates P.E. LaMoreaux and Associates, a private state certified laboratory (PELA), analyzed samples taken from Petitioner's water system at the Park. The following are the results of those samples: Date of Sampling EDB Level August 23, 1988 BDL October 12, 1988 BDL *January 18, 1989 0.12 ppb **January 18, 1989 BDL *split sample with HRS **Revised report of January 18, 1989 split sample with HRS The Sun Air water system is owned and operated by Polk County and potable water for the Park is immediately available from this water system. The cost of connection to Polk County's Sun Air water system for residents in this area is covered under the state of Florida's EDB grant program. However, since the mobile homes do not have individual meters from Petitioner's water system, the grant will only pay for one hook-up. A water line from Sun Air runs along Canal Road beside the Park and is available for immediate connection. Although the hook-up is paid for by the grant, Polk County would charge for the water furnished to the Park. Sun Air water system was sampled in May, 1986 and again in July, 1990. The 1986 sample was analyzed by PELA and the level of EDB was BDL. The 1990 sample was analyzed by HRS and the EDB level was also BDL. An alternative method of treating EDB contamination at the Park would be the installation of a carbon filter system which cost approximately $3,000.00. Fluctuations in the EDB level may be due to the nature of EDB and the local hydrology. Should Petitioner hook-up to the Sun Air water system, his present well may be used for irrigation or watering lawns. There was no evidence adduced at the hearing concerning the allegation of cost in Count III.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order directing Petitioner to connect to the available and approved Polk County water system or install a treatment system necessary for the reduction of EDB below the established MCL and placing appropriate and reasonable time schedule for commencing and completing either alternative and other conditions deemed appropriate and reasonable under the circumstances. It is further Recommended that Count II be dismissed. DONE and ENTERED this 26th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner The first clause of the first sentence of proposed Finding of Fact 1 is adopted in Finding of Fact 1, the balance of sentence one is not supported by substantial competent evidence in the record. The balance of proposed Finding of Fact 1 is not material. The first clause of the first sentence of proposed Finding of Fact 2 is not supported by substantial competence evidence in the record. The balance of proposed Finding of Fact 2 is adopted in Findings of Fact 10 and 11. Proposed Finding of Fact 3 is not supported by substantial competent evidence in the record. Proposed Finding of Fact 4 adopted in Findings of Fact 12 and 15. While the undersigned is aware that cost is a concern to the Petitioner, it is not a necessary Finding of Fact to reach a conclusion. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-6. Adopted in Findings of Fact 1, 2, 3, 4, 7 and 7, respectively. 7. Not material. 8.-10. Adopted in Findings of Fact 5, 6 and 4, respectively. 11.-14. Adopted in Findings of Fact 4 and 5. 15.-16. Unnecessary. 17.-18. Adopted in Finding of Fact 8. 19. Adopted In Findings of Fact 9 and 10. 20.-22. Adopted in Finding of Fact 10. 23. Adopted in Finding of Fact 11. 24.-25. Adopted in Finding of Fact 10. 26. Adopted in Finding of Fact 11. 27.-29. Adopted in Finding of Fact 10. 30. Adopted in Finding of Fact 11. 31.-32. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12 and 13. 35.-38. Adopted in Findings of Fact 13, 15, 16 and 17, respectively. 39.-43. Not material or necessary. 44. Adopted in Finding of Fact 18. COPIES FURNISHED: Francine M. Ffolkes, Esq. 2600 Blair Stone Road Tallahassee, FL 32399-2400 George T. Donaldson 3300 Canal Road Lake Wales, FL 33853 Dale W. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the portion of Consumptive Use Permit (CUP) Application Number 97106 seeking an allocation of 499,000 gallons per day (gpd) of groundwater for commercial/industrial uses (supply bulk water to bottling plants) meets the conditions for issuance as established in Section 373.223, Florida Statutes, Florida Administrative Code Rule 40C-2.301, and the Applicant’s Handbook, Consumptive Uses of Water.1 The County does not oppose or contest the portion of the CUP application authorizing use of 6.0 million gpd of surface water for limerock mining operations.
Findings Of Fact The Parties The County is a political subdivision of the State of Florida. The County operates a water supply utility that supplies water for a variety of uses, including providing untreated water, in bulk, for bottling purposes. The County is currently engaged in a long-range planning effort designed to assess water supply demands and sources to supply those demands in the County over the next 50 years. The County also has completed a study of the two major springs in the County (Rainbow Springs and Silver Springs), and the County’s Board of County Commissioners is in the process of enacting certain recommendations contained in the study. The well for the proposed CUP allocation is located on approximately 160 acres in northern Marion County. Hastings and Greene's father owned the property from 1978 until the latter's death. In 1993, the latter's interest was transferred to Greene and two brothers, who now hold title to the property along with Hastings. The District is a special taxing district created by Chapter 373, Florida Statutes, and is charged with the duty to prevent harm to water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The District has implemented Chapter 373, Florida Statutes, in part, through the adoption of Rule Chapters 40C-2 and 40C-20, and the Applicant’s Handbook, Consumptive Uses of Water. Historic Uses of Water on the Mine Site Since the 1980s, the property where the proposed withdrawals will occur has been used for mining of limerock and has been known as the “Black Sink Mine." A ten-inch diameter well has been located on the Black Sink Mine property for 35 years. The well was originally used to provide water to augment water levels in canals in and around the Black Sink Mine property. Later the well was used to irrigate watermelons grown on the property before the mining operation began. The limerock mining operation at Black Sink Mine uses approximately 6 million gpd of surface water. The mine pit at the site is divided by an earthen berm that separates a larger, previously mined area from a smaller area where active mining is occurring. Surface water is pumped from the actively mined portion of the pit to the larger, previously mined portion of the pit, to enable mining of the limerock material to be conducted at levels below the water table. Dewatering is necessary in order to remove the limerock. A majority of the property is mined to a depth of 55 feet below land surface. The limerock material extracted from the site is transported by trucks from the site, approximately 100 trucks per day, to various sites across North Florida. The Need for the Proposed Use of Groundwater If mining of limerock continues at the current pace, the limerock material at the Black Sink Mine will be exhausted within a year. Recognizing that the productive use of the property for limerock mining was nearing an end, Greene and Hastings began exploring other potential uses for the property, including use of the existing well on the property for production of bottled water. To explore the feasibility of producing water for bottling from the existing well, in 2004 Greene and Hastings engaged an engineering firm with expertise in water resources to conduct a hydrogeologic study of the mine property and well. The results of the study, showing water of sufficient quality and quantity for production of bottled water, motivated Greene and Hastings to submit the CUP application which was the subject of the hearing. The study also determined that water withdrawn from the well could be marketed as spring water. Greene and Hastings also determined through market research that the demand for bottled water has increased at the rate of ten percent per year for the last 4-5 years and that Florida bottlers were interested in purchasing water from the well on the mine site in bulk for bottling. In order to provide reasonable assurance that the water use proposed by Greene and Hastings is in such quantity as is necessary for economic and efficient utilization, Greene and Hastings must show that the amount to be used is consistent with what would typically be required for the activity being supplied; that the water will be used efficiently with loss or waste minimized; and that there is a demonstrated need for the water proposed for allocation. To demonstrate a need for the 499,000 gpd of groundwater requested in the application for an allocation of 499,000 gpd of groundwater, Greene and Hastings provided letters from two businesses engaged in bottling of water stating an intent to purchase specific quantities of water produced from the Greene and Hastings well should the CUP be granted. One of the letters of intent came from a bottler in Jacksonville, Florida, stating its intention to initially purchase 100,000 gpd of Greene and Hastings’s water. The other was from a bottler in Stuart, Florida, dated January 9, 2006, stating its intention to purchase 125,000 gpd of water from Greene and Hastings within “the next 12-24 months.” Based on these letters Greene and Hastings initially requested an allocation of 200,000 gpd of groundwater for the first year of the permit. Prior to completion of the CUP application, Greene and Hastings learned that because the Stuart bottler’s facility was located outside the geographic boundaries of the District, to transport water from the Black Sink Mine to the Stuart facility would require additional data and information related to inter- district transfers of groundwater. Greene and Hastings elected to reduce the requested allocation for the first year of the permit to 100,000 gpd, relying on the letter from the Jacksonville bottler. Based on the current market demand for bottled water, and based on the fact that there are other bottlers of water within the boundaries of the District purchasing water for bottling, it is reasonable to conclude that Greene and Hastings can sell 499,000 gpd of water from the well on the Black Sink Mine property by the end of the fifth year of the proposed CUP. These facts support the conclusion that there is a need for the amount of water requested by Greene and Hastings. In addition, the permit is conditioned to require a compliance review at five-year intervals during the term of the permit. Should Greene and Hastings not be successful in selling the full 499,000 gpd allocated by the fifth year of the permit, the District has the ability as part of the five-year compliance review to modify the permit to reduce the allocation based on the amount of water actually used for bottled water. Efficiency of the Proposed Use of Water The production of water in bulk for shipment to a bottler is a highly efficient use of water. There is very little if any water lost in the withdrawal and loading of the water; almost all the water goes to the end product. The evidence establishes that the use proposed by Greene and Hastings is an efficient use of water. Potential Impacts from the Proposed Groundwater Allocation The source of the groundwater proposed for use by Greene and Hastings is the Floridan aquifer. Because there is no confining layer in the vicinity of the Black Sink Mine that would retard movement of water between the Upper Floridan aquifer and the surficial aquifer, both the Upper Floridan aquifer and the surficial aquifer essentially behave as one unit. Thus, any drawdown in the surficial aquifer associated with groundwater withdrawals at this location will be the same as the related drawdown in the Upper Floridan aquifer as a result of groundwater withdrawals. The Floridan aquifer is capable of producing the amount of groundwater requested by Greene and Hastings in the application. To assess the level of drawdown expected to occur in both the Floridan aquifer and the surficial aquifer as a consequence of the proposed groundwater withdrawals, Greene and Hastings engaged a consultant, Andreyev Engineering, Inc., to run a groundwater model to simulate the proposed withdrawal and predict the anticipated drawdown. The groundwater model selected for use for this application was the North Central Florida Regional Groundwater Flow Model, a model developed for the District by the University of Florida for use in Marion County and surrounding areas. This model is an accepted and reliable tool for predicting aquifer drawdown associated with groundwater withdrawals at the location of the withdrawals proposed in this application and is used extensively by the District in its CUP program. To simulate the drawdown associated with the withdrawal of 499,000 gpd from the Florida aquifer, Greene and Hastings’s consultant inserted a pumping well in the model grid where the Black Sink Mine is located. The model then simulated pumping from the well at 499,000 gpd. The model results are graphically depicted on maps showing drawdown contours overlain on the Black Sink Mine Site, illustrating the level of drawdown in the aquifer and the distance the level of drawdown extends out from the well site. The model predicts a drawdown of 0.03 feet in the Floridan and surficial aquifers in the immediate vicinity of the well on the Black Sink Mine property, and a drawdown of 0.02 feet in the Floridan and surficial aquifers extending out to a distance of approximately 5,000 feet from the well, less than 1/3 of an inch of drawdown. The model results represent a reasonable estimation of the drawdown that will occur as a consequence of withdrawal of 499,000 gpd of groundwater at the Black Sink Mine as proposed in the application. The impact of the 0.02-0.03 foot drawdown predicted by the model was variously characterized by the experts who testified at the final hearing as “not practically measurable,” an “insignificant impact,” “very small,” or “de minimus.” The use of water proposed by Greene and Hastings will not cause significant saline water intrusion, nor will it further aggravate any existing saline water intrusion problems. The use of water proposed by Greene and Hastings will not induce significant saline water intrusion to such an extent as to be inconsistent with the public interest. Because the predicted drawdown is so small, it will not interfere with any existing legal uses of water. Neither will the predicted drawdown cause serious harm to the quality of the source of the water proposed for use by Greene and Hastings. With regard to the issue of interference with existing legal users, the County argued that the District should have considered whether there is sufficient groundwater available to meet all projected needs for water in the County during the 20- year term of the permit, as well as the additional cost County citizens will need to bear to secure alternative water supplies as a result of any future shortfalls in available groundwater. The County projects, based on planning estimates, that use of groundwater to supply all anticipated uses of water in the County will be limited within 20-30 years from the present. Such “limits” would not become an issue until after the Greene and Hastings permit expires. Thereafter, water users in the County will have to rely on alternative water sources, conservation, reuse of reclaimed water, and surface water. The anticipated growth in demand in the County’s planning estimates includes anticipated growth in the commercial/industrial category of uses. The County’s estimated limits on groundwater use will occur whether or not the CUP requested by Greene and Hastings is approved. The District does not base its permitting decisions on a pending CUP application on the possibility that the source of water may become limited at some future time for water uses not presently permitted, provided the application meets all permitting criteria. The District allocates water for recognized beneficial uses of water, such as commercial/industrial uses, as long as the water is available and the application meets District criteria. The District allocates water as long as an allocation does not cause harm to the resource. Based on these facts, the proposed use of water by Greene and Hastings will not interfere with any existing legal use of water. No Evidence of Economic or Environmental Harm Because the predicted drawdown associated with the proposed use of water is so small, and because no impacts are anticipated on any surrounding properties or water uses, Greene and Hastings have provided reasonable assurance that any economic harm caused by the proposed use has been reduced to an acceptable amount. For purposes of determining whether an applicant has provided reasonable assurance that any environmental harm caused by a proposed use of water is reduced to an acceptable amount, the District examines modeling results showing the level of drawdown predicted for the use and also examines the resources in and around the site of a withdrawal to determine the likely impact of the drawdown predicted for the withdrawal on those resources. The District’s environmental scientists examined the Black Sink Mine site and the surrounding landscape and determined that, based on the characteristics of the landscape in and around the site of the proposed withdrawal and based on the negligible drawdown impact predicted for the proposed water use in both the Floridan and surficial aquifers, there will be no environmental harm resulting from the allocation of groundwater contained in the CUP. The use of water proposed by Greene and Hastings will not cause damage to crops, wetlands, or other types of vegetation. The use of water proposed by Greene and Hastings will not cause the water table to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by Greene and Hastings. The CUP will not use water that the District has reserved pursuant to Section 373.223(3), Florida Statutes, and Rule 40C-2.301(4). No Impact on Established Minimum Flows or Levels No minimum surface or groundwater levels or surface water flows have been established by the District pursuant to Rule Chapter 40C-8 for any of the water bodies in Marion County that may be affected by the proposed water use. The closest water body for which the District has established a minimum flow is the St. Johns River at the State Road 44 bridge located more than 50 miles from the Black Sink Mine property. The closest water body for which the District has established a minimum level is Star Lake in Northwest Putnam County, more than nine miles from the mine site. Because of the distance of these water bodies from the withdrawal site and because of the negligible drawdown expected to be caused by the proposed use of water, the use will not cause an established minimum flow or level to be exceeded during the term of the permit. Other Reasonable-Beneficial Use Considerations All available conservation measures that are economically, environmentally, and technically feasible are proposed for implementation in the application by Greene and Hastings for the uses proposed by them. Greene and Hastings submitted to the District, as part of the application, a conservation plan that complies with the requirements of A.H. Section 10.3(e). Reclaimed water, as defined in the District’s rules, is not currently available to be used in place of the water proposed for use by Greene and Hastings in the application. The use of water proposed by Greene and Hastings in the application will not cause or contribute to a violation of water quality standards in receiving waters of the state. The use of water proposed by Greene and Hastings in the application will not cause or contribute to flood damage. The Use is Consistent With the Public Interest With regard to the determination of whether reasonable assurance was provided that the proposed use is consistent with the public interest, the County contends that: 1) Greene and Hastings must show that any necessary approvals required by the County’s Comprehensive Plan and/or its LDRs for use of the site for producing bottled water have been obtained; 2) that the District did not properly consider the effect of existence of lawn watering restrictions affecting citizens in the County in evaluating the application; and 3) that the District should have considered the amount of money the applicant may stand to gain from the use of the water requested in the application. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the people of the area and to water resources within the state. In this inquiry, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry focuses on the impact of the use on water resources and existing legal users. Sale of water for bottling for human consumption is recognized by the District as a legitimate, beneficial economic enterprise. Use of water for human consumption is among the highest and best uses permitted by the District. For reasons outlined above in the Recommended Order, there are no detrimental impacts that will result from this use of water. The District does not consider whether local government approvals have been obtained prior to issuance of a CUP for purposes of determining whether the application is consistent with the public interest. Neither does the District consider impacts related to local roads from trucks transporting the water or other impacts not related to water resources. No such requirements are included in the District’s adopted permitting criteria. There are no water shortage orders in effect in the District at present. In evaluating a CUP application, the District considers whether its permitting criteria will be met during periods of normal weather as well as during periods of drought. Withdrawals authorized in CUPs can be restricted by order of the District during periods of water shortage, such as droughts. Thus, the possibility of a water shortage order being entered in the County in the future, or the fact that such orders may have been in effect there in the past, does not mean the application is not consistent with the public interest. The District critically examines the efficiency of all water uses for purposes of enacting its regulatory requirements regarding CUPs and in evaluating CUP applications. The District has adopted restrictions on landscape irrigation (which apply to all such users throughout the District’s jurisdiction, not just in Marion County) limiting landscape irrigation to no more than two days per week. The limitations on landscape irrigation exist because this type of use has been determined to be a highly inefficient, wasteful use of water without such restrictions. By contrast, the use of water proposed by Greene and Hastings is a highly efficient use of water, resulting in little or no loss or waste of water. The District does not consider the level of financial gain or benefit an applicant will derive from a permitted use of water for purposes of determining whether the proposed use is consistent with the public interest. Most, if not all permitted users of water derive some level of economic benefit from the water they use, and the District’s rule criteria do not provide standards for evaluating such gain or that otherwise limit the amount of such gain. For the foregoing reasons, the Applicant has provided reasonable assurance that the use of water proposed in the application is consistent with the public interest. Groundwater is the Lowest Quality Source for this Use The County contends that groundwater is not the lowest quality source of water available for the use proposed by Greene and Hastings, in that surface water from the mine pit on the site could be treated and used for bottling in place of groundwater. From the testimony, it is clear that Greene and Hastings’s ability to market water for bottling from the Black Sink Mine is dependent on such water being capable of being labeled as spring water, and on such water being delivered without having gone through any treatment processes. The testimony also establishes that because of the connection between the surficial aquifer and the Upper Floridan aquifer at the site, using surface water instead of groundwater to supply the proposed use would result in little if any reduction in impacts to the Floridan aquifer. More importantly, because the application proposes use of water for direct human consumption, the District’s rules do not require use of a lower quality source of water. For the foregoing reasons, groundwater is the lowest quality source of water suitable for use for bottled water for human consumption. The District’s Noticing Was Adequate and Appropriate The District provided notice of its receipt of the Greene and Hastings CUP application by publishing notice in the Ocala Star-Banner, a newspaper of general circulation in Marion County, on January 25, 2005, with an amended notice being published on February 16, 2005, and also by letters to the County dated January 20, 2005, and February 10, 2005. In each notice, the location of the proposed use was identified by section, township, and range. The County responded to the notices by sending a letter of objection to the application dated February 14, 2005. Thus, the County received sufficient information regarding the location of the proposed use to enable it to prepare and file a letter of objection to the application, and suffered no prejudice as a consequence of the notice. The District provided personal notice of its intent to issue a CUP to Greene and Hastings by letter dated April 5, 2006. In this notice, the location of the proposed use was identified by section, township, and range. The County responded by filing petitions that have resulted in this proceeding. Thus, the County received sufficient notice of the location of the use addressed in the District’s intent to issue to enable it to initiate administrative proceedings regarding the permit, and suffered no prejudice as a consequence of the notice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting CUP No. 97106 to Greene and Hastings with the conditions recommended in the District’s Technical Staff Report. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th of January, 2007.
The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2012.
Findings Of Fact By application No. 2-7738 filed on June 29, 1981, Aquarina has requested a withdrawal for consumptive use of ground water in Brevard County in the amount of 468,000 gallons per day (850,000 gallons per day maximum) of raw water (before processing). The purpose of the proposed consumptive water use is a proposed development of 196+- acres in Brevard County located between Mullet Creek, a tributary of the Indian River and the Atlantic Ocean in South Brevard County. It is located on the barrier islands separated from the mainland by the Indian River, and is 13 miles south of Melbourne and 5 miles north of Indian River County. Aquarina proposes to develop a condominium community with a projected population of 3,500 persons consisting of 1,600 residences, a commercial area, and 500 hotel rooms. An on-site well field is proposed as well as reverse osmosis water treatment and wastewater treatment plants which are to be constructed near the southern boundary of the development. Two wells with a capacity of approximately 500 gallons per minute are proposed to be constructed and both will withdraw water from the Floridian Aquifer for conversion by reverse osmosis treatment into potable water. 3/ In addition to potable water supply requirements for the development, although part of the requirement will be met by wastewater, there is a requirement for irrigation water for landscaping. The Aquarina site has been zoned Planned Unit Development (PUD) since 1973 and the proposed densities are in accordance with those established in the Brevard County Comprehensive Plan and Zoning Ordinance. As a result of an earlier application of Aquarina for consumptive use, a temporary water use permit was granted by the District to allow Aquarina to drill test wells for aquifer testing before the present application for water use would be considered by the District. This earlier application is not now at issue. Pursuant to this temporary permit, Aquarina conducted an aquifer test program. During the first test, well #1 (the northernmost well) was utilized as a monitor or observation well for the test conducted on well #2, and an existing mosquito control well was also used as an observation well. A two-step pump test was run for 24 hours, with drawdown readings recorded at all three wells. The pump test analysis showed that the Floridian Aquifer transmissivity (the measure of the ability of the aquifer to transmit water) ranged from 173,000 gallons per day per foot at the observation wells to 87,000 gallons per day per foot at the discharge well. The total depth of these two wells was #1 -- 425 feet and #2 -- 412 feet. Following submission of the results of the first aquifer test and the application for consumptive use filed on June 29, 1981, the District staff prepared a Technical Staff Report (TSR) for the benefit of the District Governing Board based upon the two wells drilled pursuant to the temporary permit. However, because the proposed withdrawals would be from the Sebastian Inlet fresh water lens which is a finite potable source of water rapidly being depleted by existing domestic uses and mosquito control wells, the TSR recommended, among other things, that the two wells be deepened to a depth below the Sebastian Inlet fresh water lens and cased to the depth of 450 feet to insure that withdrawals occur from expected saltier water below the lens. Also, the District staff recommended that three mosquito control wells on the Aquarina property be properly plugged to eliminate fresh water loss from the lens due to the following wells. The three flowing mosquito control wells on the site were estimated to have been flowing at 432,000 gallons per day. The Sebastian Inlet fresh water lens from which Aquarina initially intended to withdraw its water appears as two underground bubbles or lenses of water fresher than the surrounding connate or saltier water. The lenses apparently are a result of stratigraphic entrapment of fresh water due to geological formations and are not being recharged with fresh water. When withdrawals are made from these lenses, salty or connate-water fills the void left by the fresher water following withdrawal. The two lenses were substantially larger during recent times but, because of many domestic uses as well as mosquito control wells which have been flowing freely, the reservoirs have shrunk significantly. Based upon present usage, the north portion of the lens will last until approximately the year 2000 at current rates of consumption and the south portion of the lens will last until approximately the year 2030 at current rates of consumption. Because of the impact on the Sebastian Inlet lens, the staff of the District could not recommend approval of Aquarina's application unless Aquarina agreed to three main conditions: The Applicant would case its production wells to 450 feet below the surface, to avoid interference with the freshwater reservoir. (Because of the combined factors of upward artesian pressure in the aquifer, the greater density of salt or connate water in relation to fresh- water, and the known range of transmis- sivity and storage factors for that portion of the aquifer [an underground waterbearing stratum or group of strata] in that geographical area, connate water would flow upward and from the sides into the area of the Applicant's withdrawal of water from beneath the lens, and the lighter, fresh water of the lens above would remain there, free from interfer- ence by the withdrawal.) The Applicant would have to plug all the preexisting mosquito control wells on the development site. The Applicant would have to undergo early monitoring of the chemical quality of this water and the water within the fresh water reservoir. As a result of Aquarina's agreement to meet these three conditions, the Technical Staff Report (TSR) issued by the District on August 20, 1981, recommended approval of the application with the addition of the above conditions. During the course of (1) deepening of well #2 to a depth of 650 feet and backplugging to 595 feet; (2) casing it to a depth of 450 feet; (3) performing a second aquifer test on the deeper well; and (4) evaluating the proposed withdrawals, Aquarina's consultants came to the following conclusions which were unrebutted by other evidence submitted at the final hearing: During the process of deepening well #2 to 650 feet, later backplugged to 595 feet, the consultants discovered an aquitard or confining layer made up of small clay-sized particles which retard the vertical flow of water at a depth of 440 to 450 feet. This well was cased to a depth of 450 feet or to the top of the aquitard. Before reaching this layer, the quality of water was generally declining with increasing depths. Below this layer, the quality of water improved to a depth of approximately 550 feet and the transmissivity was greater below the aquitard than above. Further, that same aquitard was also discovered in a mosquito control well on site when it was logged. Sufficient quantities of treatable water are available from the deepened well to supply the needs of the Aquarina project. That in both the June, 1991, and the subsequent aquifer test, there appeared to be interferences from other sources which impact the potentiometric pressure levels of the wells on the Aquarina site. These were identified as the South Brevard Utilities Corporation (SBUC) and nearby domestic well users. That the results of the June, 1981, test and computer modeling were that the impact of the proposed Aquarina with- drawls on existing nearby wells drilled to the shallower level was between a one to two foot decline in the potentiometric pressure. The average potentiometric pressure in the local aquifer is 27 feet above National Vertical Geodetic Datum (NVGD) or Mean Sea Level (MSL). These existing nearby wells were identified to be the SBUC well approximately 2,400 feet away from Aquarina and those wells of nearby homeowners in the same vicinity as the SBUC well. That flownet analysis (EPA computer model) of the results of the second aquifer test program revealed that approximately 6% of the water obtained from the deepened well would come from the layers above the aquitard, i.e. connate water and the Sebastian Inlet fresh water lens. Based on this model, the effect on water quality for existing users of the proposed withdrawals was concluded to be insignificant and known existing users would not be harmed by the proposed withdrawals. The aquitard was observed in the Aquarina deepened well and the observation mosquito control well which was logged. It was impossible to state definitely that the observed aquitard in the area was a continuous geologic feature. Partly due to the proximity of the aquitard and the depth of the wells in relation to the Sebastian Inlet fresh water lens, the conclusion was reached that effect on water quality of the Aquarina withdrawals would be insignificant. There is no fresh water recharge into the Sebastian Inlet fresh water lens, but there is a continuous pressure con- nection throughout the Florida aquifer in the area. Any replacement of water discharged from the Sebastian Inlet fresh water lens or the lower zones will be of saltier, less potable connate water. It is not understood how long the part of the aquifer below the aquitard (lower zone) will continue to be a significant source of fresh water due to insufficient data. The three mosquito control wells on the Aquarina site are flowing when uncapped or unplugged an estimated 432,000 gallons per day while the wells in the northern sector of the Sebastian Inlet fresh water lens (below where Aquarina is located) flowed at an approximate rate of 2.6 MGD. These withdrawals by the mosquito control wells are primarily from the Sebastian Inlet fresh water lens and are the major cause of premature depletion of the lens. The testimony and the data presented at the hearing demonstrated that the Applicant has met its burden to show by a preponderance of the evidence that the proposed withdrawals by Aquarina will not significantly affect either the quality or quantity of water available to neighboring water users. This appears to be the case regardless of whether the aquitard testified to be about ten feet thick exists and whether the leakance value of less that 6% exists in the aquifer between the point of the Aquarina withdrawals and neighboring users. Data which may be generated subsequently may lead to a different conclusion, but this finding is based on the data presented to the Hearing Officer by the parties at the hearing. 4/ Aquarina has agreed to the following permit condition: (b) The applicant would have to plug all the preexisting mosquito control wells on the development site. The proper plugging of the mosquito control wells on the Aquarina site will save approximately 432.000 GPD of water from the finite Sebastian Inlet lens. This condition was agreed to independently of the contribution by Aquarina of $25,000 to the well plugging program with the District and Brevard County which has as its goal, the plugging of all mosquito control wells in the area. Without the plugging of the mosquito control wells, it is estimated that the northern reservoir of the lens would be depleted by the year 2000, and the southern reservoir by the year 2030. It was also estimated that the plugging of the mosquito control wells would prolong the life of the fresh water reservoirs by over 100 years. Furthermore, by plugging all the mosquito control wells, approximately 6,700,000 gallons per day will be saved from the entire lens area. The basin in which Aquarina is located is in an overdraft condition with more water withdrawn than is presently being recharged. However, the Aquarina project will bring about a net improvement in the situation due to the mosquito control well plugging program imposed as a condition of the permit. Under the sites current PUD zoning, a density of 12 dwelling units per acre is permitted. The current classification of the property in the Brevard County Comprehensive Plan is "urbanizing." Under that classification, the Applicant could seek a rezoning of the property from PUD to single family attached residential. Such a reclassification would avoid the requirements of Chapter 373, Florida Statutes, by allowing each of the 196+- dwelling units to have its own well with a per unit consumptive use below the quantity required to activate Chapter 373, Florida Statutes. Nothing would prevent any of the residential wells from tapping the fresh water lens presently used by the Petitioners in a total amount exceeding that sought in the instant application. Given the designated land use of the Aquarina site, the controlled withdrawal from one or two points within the development is a preferable alternative to the unregulated development and water use which in all probability would follow from the denial of this permit. In large measure, the District's options regarding this site and its attendant consequences have been predetermined by land use decisions made by local officials. Under these circumstances, the District has been required to choose among a set of options which do not include an option for controlled and limited growth directly tied to availability of fresh water resources envisioned by the Petitioner. The choice which the District made in this case, although obviously not ideal, is the best among the presently available alternatives.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent St. Johns River Water Management District grant the requested consumptive water use permit to the Applicant Aquarina Developments, Inc., subject to the conditions contained in the staff's TSR, as corrected and amended on March 25, 1982, which include, but are not limited to: The maximum daily withdrawal shall not exceed 9.765 million gallons per day for five years. The maximum annual withdrawal shall not exceed 171 million gallons for five years. The existing ten inch public supply wells shall be lined or cased to a depth of 450 feet below land surface to insure with- drawals from below this depth. The construction standards used to perform these well modifications shall be accomplished through all appropriate permitting regulations and conform to existing construc- tion standards as stated in Chapter 373, Florida Statutes (F.S.) and Chapter 40C-3, Florida Administrative Code (F.A.C.). That any subsequent Public Supply well or wells constructed for this project be cased to an equal depth. That all mosquito control wells (3) within the property boundaries of the permittee be plugged with neat cement grout from bottom to top as specified in Chapter 40C-3, F.A.C. Chloride concentrations and dissolved solids in water samples from each water supply well shall be measured monthly, and results shall be submitted within 60 days of measure- ment to the St. Johns River Water Management District. A complete water quality analysis including Ca, Mg, Na, K, Cl, S04, HC03, pH and Co3 shall be performed on samples collected in May of each year. The permittee shall maintain withdrawal records showing daily withdrawals of raw (pre-treatment) water for each year ending May 31. These records shall be submitted on a quarterly basis on District Form En-3. Nothing in this permit shall be construed to limit the authority of the St. Johns River Water management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or formulate a plan for implementation during periods of water shortage pursuant to Section 373.246, Florida Statutes. District representatives may visit the site to insure compliance with conditions of this permit following advance notifica- tion of the permittee of the time of visit. The water conserving techniques and methods as outlined in the July 30, 1981 letter to the District from Ed Fleis, P.E., to Thomas K. Ziegler, TSR Exhibit 10, shall be implemented and included throughout all phases of this project. Further, should the replace- ment of any fixtures or appliances be required during the life of this permit, water conserving fixtures equivalent to those originally specified shall be installed. DONE AND ORDERED this 6th day of August, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
