The Issue The issue is whether the Southwest Florida Water Management District (District) should issue water use permit (WUP) No. 2004912.006 to the City of Lakeland (City), and if so, how much water should be allocated under the permit and what conditions should be imposed on the allocation, particularly in regard to withdrawals from the City's Northeast Wellfield (NEWF).
Findings Of Fact Introduction This is an unusual case in that the District gave notice of its intent to issue a permit that the City does not want and that the District staff testified that the City is not even entitled to based upon the information submitted prior to and at the final hearing. That said, there is no disagreement between the parties that a permit should be issued to the City. Indeed, despite the District Staff's testimony that the City failed to provide “reasonable assurances” prior to or at the final hearing on a variety of issues, the District takes the position in its PRO that a permit should be issued to the City, subject to various conditions and limitations. There is also no disagreement between the parties that the permit should include an allocation of 28.03 mgd from the City’s Northwest Wellfield (NWWF). The main areas of disagreement between the District and the City are the duration of the permit; the total allocation of water under the permit; and, perhaps most significant, the total allocation from the NEWF. Parties The City is an incorporated municipality located in Polk County. The City is within the boundaries of the District and is within the Southern Water Use Caution Area (SWUCA) designated by the District. The City is the applicant for the WUP at issue in this case, No. 20004912.006. The City operates a public water utility that provides potable water and wastewater services to customers in and around the City. The utility’s water service area extends beyond the City limits into surrounding unincorporated areas of Polk County. The District is the administrative agency responsible for conservation, protection, management and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. The District is responsible for reviewing and taking final agency action on the WUP at issue in this case. Stipulated Facts The parties stipulated that the City’s substantial interests have been adversely affected by the District’s intent to issue the proposed permit, and that the proposed permit is different from the permit that the City applied for. The parties also stipulated that there is reasonable assurance that the City’s proposed water use will not interfere with a reservation of water as set forth in Florida Administrative Code Rule 40D-2.302; that the proposed use will not significantly induce saline water intrusion; that the proposed use will incorporate the use of alternative water supplies to the greatest extent practicable; and that the proposed use will not cause water to go to waste. The City’s Wellfields Overview The City obtains the water that its water utility provides to its customers from two wellfields, the NWWF and the NEWF. The NWWF is located north of Lake Parker in close proximity to Interstate 4 and Kathleen Road. It provides water to the Williams Water Treatment Plant, from which the water is distributed throughout the City water utility’s service area. The NWWF is located on the Lakeland Ridge, which is a geographic feature that is approximately 250 to 260 feet above sea level. The Lakeland Ridge has a thick clay intermediate confining unit that isolates the surficial aquifer from the underlying aquifers. The NEWF is located to the north of Interstate 4, adjacent to Old Polk City Road. It provides water to the Combee Water Treatment Plant (Combee), from which the water is distributed throughout the City water utility’s service area. The NEWF is located at an elevation of approximately 135 feet above sea level. The surficial aquifer at the NEWF is relatively thin, and the intermediate confining unit at the NEWF is not as thick as it is at the NWWF. The Upper Floridan Aquifer (UFA) begins at approximately 65 below land surface at the NEWF. The City’s water treatment plants are traditional lime softening plants and are not able to treat brackish groundwater or surface water to the extent necessary for human consumption. It would be cost-prohibitive to implement a process to treat brackish water at the plants. Relevant Permitting History The City’s water utility has been in operation for more than 100 years, and the NWWF has been in operation since at least the early 1980’s. The earliest permit for the NWWF contained in the record is permit No. 204912, which was issued by the District in January 1987. The permit authorized average annual withdrawals of 28.3 mgd, and had an expiration date of January 1993. The NEWF was first permitted by the District in December 1989. The permit, No. 209795.00, authorized the City to pump an average of 9.0 mgd from the NEWF. The permit had a six-year duration, with a December 1995 expiration date. The permits for the NWWF and the NEWF were combined into a single permit in October 1993. The permit, No. 204912.03, authorized the City to pump a total of 28.1 mgd, with 9.0 mgd from the NEWF. The permit had a 10-year duration, with an October 2003 expiration date. In December 2002, the City's WUP was administratively modified pursuant to the District’s SWUCA rules. The modified permit, No. 20004912.004, did not change the permitted quantities at the NEWF or the 2003 expiration date, but the total allocation was reduced to 28.03 mgd. In October 2003, prior to the expiration of the existing permit, the City submitted an application to renew and modify its WUP permit. The application requested a 20-year permit with a total allocation of 32.8 mgd, with up to 16.0 mgd from the NEWF. During the permit review process, the City amended its application to increase the requested total allocation by 4.0 mgd (from 32.8 mgd to 36.8 mgd) and to decrease the requested duration of the permit by five years (from 2023 to 2018). The 36.8 mgd requested by the City was to be allocated between the NWWF (28.03 mgd) and the NEWF (8.77 mgd). The City supplemented its application during the permit review process in response to multiple requests for additional information and clarification from the District. The information provided by the City in support of the application is extensive; the “permit file” received into evidence consisted of approximately 2,500 pages, and the entire file is approximately twice that size.2 The review process culminated in what the District staff considered to be a “negotiated permit”3 that would initially authorize pumping of 33.03 mgd, with 28.03 from the NWWF, 1.5 mgd from the NEWF, and 3.5 mgd from a production well to be constructed at Combee. The proposed permit includes a phasing schedule that would allow for increased withdrawals -- up to 35.03 mgd total and 4.0 mgd from the NEWF4 -- if the City is able to demonstrate to the District’s satisfaction that the increased pumping will not cause adverse environmental impacts. The District gave notice of its intent to issue the proposed permit on December 29, 2006, and the permit was placed on the “consent agenda” for the District Governing Board’s meeting on January 30, 2007. On January 23, 2007, before the proposed permit was considered by the Governing Board,5 the City timely filed a petition challenging the proposed permit. The petition alleges that the proposed permit does not allocate sufficient water to meet the City's projected population demands in 2018 and that it does not allocate water quantities from the NEWF and the NWWF in the manner requested by the City. The NEWF The NEWF is approximately 880 acres in size. Wetlands comprise approximately half of the site. The NEWF is located within the boundaries of the Green Swamp, which is an area of critical state concern (ACSC) designated under Chapter 380, Florida Statutes. The Green Swamp is a hydrologically and environmentally important feature of central Florida encompassing thousands of acres of cypress wetlands, marshes, and forests. In 1992, a task force recommended that public water supply wellfields “of capacity greater than 1.8 mgd (average 3.6 mgd maximum)” from the UFA be discouraged in the Green Swamp ACSC in favor of wells from the Lower Floridan Aquifer in order to “mitigate drawdown impacts to the surficial aquifer system and resulting dehydration of wetlands . . . .” There is no evidence of that recommendation being formally adopted by the District or any other governmental agency, and the District does not have more stringent permitting criteria for WUP applications in the Green Swamp, except that it considers potential adverse impacts to all isolated wetlands and not just those larger than one-half acre in size.6 The City installed five 16-inch production wells at the NEWF, along with a number of associated monitoring wells. The production wells, which are cased to approximately 120 feet with a total depth of approximately 750 feet, pump water from the UFA. Pumping at the NEWF started in October 2005. The City has been pumping 4.0 mgd from the NEWF since that time. The City has spent over $34 million to bring the NEWF into service. The costs directly related to the acquisition of the NEWF site and the installation of the wells at the site account for approximately $7.6 million of that amount; the remainder of the costs are for associated infrastructure, such as the installation of water lines from the NEWF site and the construction of Combee. The wetlands on the NEWF site are predominantly isolated cypress wetlands, although there are some connected systems. Isolated wetlands are more susceptible to impacts from water deprivation than are connected wetland systems. The uplands on the NEWF site consist primarily of open pasture and fields and areas of planted pines. Extensive drainage improvements were constructed on the NEWF site between 1941 and 1980 when the site was being used as improved pastureland for cattle grazing and managed woodland for logging and silviculture. The improvements included the construction of a network of drainage ditches, culverts, roads, a grass landing strip, and a gas pipeline. The intent and effect of the drainage improvements was to remove surface water from the onsite wetlands. Historical aerial photographs show that these efforts were successful. The wetlands on the NEWF were adversely impacted by the drainage improvements, but for the most part, they are still functioning, albeit low-quality wetlands. The extensive ditching on the NEWF site continues to have an adverse impact on the wetlands even though the ditches have not been maintained and do not function as efficiently as they once did. The planted pine trees on the NEWF site may also be adversely affecting the wetlands through increased evapotranspiration from the surficial aquifer. However, the evidence was not persuasive regarding the extent of the impact from evapotranspiration. The present condition of the wetlands at the NEWF is not the result of recent activity. The biological indicators in the wetlands (e.g., adventitious roots on cypress trunks, large oak trees in the wetlands, red maple trees in areas that had at one time been dominated by cypress trees) show that the degraded condition of the wetlands dates back decades. The progressive draining and degradation of the wetlands caused by the ditching and other drainage improvements constructed on the NEWF site is apparent in the historic aerial photographs of the site. The size of the wetlands and the “hydrologic signatures” (e.g., standing water around the rims of wetlands and across the site, extensive cypress canopies, etc.) visible on earlier aerial photographs are less visible or non- existent in more recent aerial photographs. The wetlands on the NEWF site have shown no biological indicators of impacts from the pumping at the NEWF that started in October 2005. This does not necessarily mean that the pumping is not impacting the wetlands because the parties' experts agree that it can take many years for such biological indicators to appear. The more persuasive evidence establishes that the historical drainage improvements on the NEWF site were the primary cause of the degraded condition of the wetlands.7 The more persuasive evidence also establishes that unless altered, the drainage improvements on the NEWF site will continue to have an adverse effect on the wetlands. The City proposed a conceptual Wetland Improvement Plan (WIP) that is designed to restore and enhance the wetlands on the NEWF. A central component of the WIP is the reengineering and alteration of the drainage features by installing “ditch blocks” in some areas and culverts in other areas. The WIP also includes not replanting the pine trees on the NEWF site once the existing planted pines are harvested. The ditch blocks and other modifications to the drainage features are intended to hold water on the NEWF site and redirect it to the wetlands. This will help to hydrate the wetlands, increase soil moisture levels, and allow more water to percolate into the surficial aquifer following rain events. The District staff expressed some concerns with the City’s WIP at the final hearing, but acknowledged that the plan’s “conception . . . has a lot of merit.” Indeed, in its PRO, the District recommends the “installation of ditch blocks and similar measures at the [NEWF] site.” The WIP, if properly implemented, has the potential to enhance the wetlands by returning them to a more natural condition. The City will likely need an Environmental Resource Permit (ERP) from the District before any system of ditch blocks can be installed. The details of the WIP can be worked out during the ERP permitting process.8 A good monitoring plan is part of providing reasonable assurances. The parties agree that a monitoring plan should be included as a permit condition, and the EMMPs attached to the parties’ respective PROs appear to be materially the same. The City has monitored the wetlands at the NEWF since 1994, pursuant to a specific condition in the 1993 WUP permit. The methodology used by the City to monitor the wetlands was approved by the District, and despite the fact that the City has submitted biannual monitoring reports to the District for almost 14 years, the District expressed no concerns regarding the methodology or results of the monitoring until recently. The District commenced its own wetland assessment procedure at the NEWF in May 2007, which included setting “normal pools” in several of the wetlands. “Normal pool” describes the level at which water stands in a wetland in most years for long enough during the wet season to create biological indicators of the presence of water. The establishment of normal pools was part of the District’s efforts to establish the “existing natural system” against which any post-withdrawal adverse impacts at the NEWF would be measured in accordance with Section 4.2 of the Basis of Review for Water Use Permit Applications (BOR).9 Normal pools could not be established in several of the wetlands because there was no measurable standing water above the surface in the wetland. District staff observed similar conditions –- i.e., no standing water in the wetlands –- on at least one occasion following a significant rain event prior to the start of pumping at the NEWF. The District does not have a rule governing the setting of normal pools, but the City’s experts did not take issue with the normal pools set by the District or the methodology used by the District to set the normal pools. The EMMP proposed by the City is an extensive monitoring plan that incorporates a series of onsite monitoring wells, wetland monitoring stations for vegetation and hydrogeology, monitoring of pumping rates and pumping data, and monitoring of rainfall data. The EMMP will make use of the extensive data that has been collected on the NEWF site since the 1990’s as well as the normal pools set by the District, and if properly implemented, the EMMP will detect any potential adverse impacts as they occur to allow for remedial mitigation. The District staff acknowledged at the final hearing that the EMMP proposed by the City “with some minor modifications” is an appropriate plan to monitor changes in the wetlands at the NEWF. The necessary "minor modifications" were not explained at the final hearing, and as noted above, there does not appear to be any material difference in the EMMPs attached to the parties’ respective PROs. The Green Swamp is generally viewed as a “leaky” area, with little or no confinement between the surficial aquifer and the Floridan aquifer. Regional data, including studies by the United States Geologic Survey (USGS) and the District, reflect that the NEWF is located in a “transitional area” between areas of little or no confinement to the north, northwest, and east of the NEWF and areas of thicker confinement to the south. However, at least one study (published in 1977 USGS report) shows the NEWF in an area designated as "poor" for its relative potential for downward leakage. Regional data may be used to gain knowledge about the aquifer properties at a potential well site, but such data is not a valid substitute site-specific data. Indeed, the location of the NEWF in a “transitional area” makes site-specific data even more important. The City used geologic cross-sections (e.g., soil borings and core samples) at the NEWF to determine the site’s lithologic characteristics. By contrast, the District relied primarily on USGS reports and other regional data to postulate as to the lithologic characteristics of the NEWF. As a result, the City’s position regarding the lithologic characteristics of the NEWF was more persuasive than the District’s position. The lithology of the NEWF site consists of a shallow, sandy surficial aquifer, which extends to a depth of 3 to 5 feet, proceeding downward to sandy clay and clay sand semi- confining layers, alternating with impermeable clay units, interspersed with an intermediate aquifer composed of sandy clays and clay sands that contain water, proceeding downward to the limestone of the UFA. The presence of clay layers between the intermediate aquifer and the UFA, together with clay layers between the intermediate aquifer and the surficial aquifer, provide two layers of protection between the pumped aquifer and the surficial aquifer and wetlands, and serve to ameliorate any impacts to the surficial aquifer caused by withdrawals from the UFA. “Leakance” is a measure of vertical conductivity that describes the rate at which water flows through a confining unit. As a result, leakance is one of the most important factors to consider when modeling surficial aquifer impacts and potential wetland impacts from groundwater pumping. Generally, a higher leakance value is an indication of a “leakier” system with less confinement between the surficial aquifer and the UFA. The “leakier” the system, the greater the impacts of pumping on the surficial aquifer will be. The District contends that the confining unit underlying the NEWF is “leaky” and that the pumping at the NEWF is likely to directly and adversely affect the onsite wetlands. However, the more persuasive evidence establishes that the lower leakance value derived by the City based upon the site-specific lithology of the NEWF and the data from the aquifer performance tests (APTs) conducted at the NEWF is more accurate than the higher leakance value urged by the District. The purpose of an APT is to determine the hydrologic parameters of an aquifer. In particular, an APT is used to determine the transmissivity, leakance, and storage values of the aquifer. Transmissivity is a measure of how easily water flows through the ground, and storage is a measure of the amount of water in the porous spaces of the aquifer. Generally, a higher transmissivity value and a lower storage value indicate better confinement. There have been three APTs conducted at the NEWF. The first APT (APT-1) was conducted in 1989 as part of the initial permitting of the NEWF. A high transmissivity value and a low storage value were calculated in APT-1. A leakance value was not calculated. The results of APT-1 were presented to the District to justify the City’s request to pump 9.0 mgd from the NEWF, which the District approved. The 1993 permit combining the NWWF and the NEWF required the City to conduct a long-term APT in order to “determine the leakance parameter between the surficial and intermediate aquifers and the leakance parameter between the intermediate and Upper Floridan aquifers.” The permit stated that if the hydrologic parameters obtained in the APT were different from those used in the model submitted in support of the initial WUP, the City would have to revise the model and, if necessary, modify the WUP to reduce withdrawals. This second APT (APT-2) was a seven-day test conducted by the City in January 2001 in accordance with a methodology approved by the District. An “exceedingly low” leakance value of 4.5 x 10-4 gallons per day per cubic foot was calculated in APT-2. The transmissivity and storage values calculated in APT- 2 were essentially the same as the values calculated in APT-1. The District expressed concerns with the results of APT-2, and in December 2001, the District advised the City that it should “proceed with caution during the planning of infrastructure (pipelines) for the [NEWF]” because the “wellfield may not be able to produce the volume of water the City has stated that would like from the wellfield, without causing adverse impacts.”10 Based upon these concerns, the District conducted an APT (APT-3) at the NEWF in April and May 2003. The parties’ experts agree that data from APT-3 is reliable, but the experts disagree in their interpretation of the data, particularly in regards to the leakance value. The City’s experts calculated a leakance value of 1.4 x 10-4 feet per day per foot, which is a low leakance value. The expert presented by the District, Dann Yobbi, calculated a higher leakance value of 3.4 x 10-3 feet per day per foot, which suggests relatively “leaky” aquifer. The leakance value calculated by the City’s experts is more persuasive than the value calculated by Mr. Yobbi because Mr. Yobbi did not “de-trend” the data from APT-3 based upon the general declines in water levels occurring at the time of APT-3. Indeed, Mr. Yobbi testified that he is in the process of revising his report on APT-3 to address this issue and he acknowledged that the surficial aquifer showed only a “slight response” to the pumping during APT-3. The leakance value calculated by the City’s experts in APT-3 is consistent with the leakance value calculated in APT-2. The transmissivity and storage values calculated in APT-3 are also consistent with the values calculated in APT-1 and APT-2. The reliability of the leakance values and other aquifer parameters calculated by the City’s experts for the NEWF is confirmed by water level data compiled by the City pursuant to the monitoring requirements in the existing WUP. The water level data was collected from monitoring wells at the NEWF in the surficial aquifer, the intermediate aquifer, and the UFA. The City began collecting this data in 1994 and it continues to collect and report the data to the District as required by the existing WUP. The water level monitoring data reflects that the surficial aquifer at the NEWF responds almost immediately to rain events. By contrast, the intermediate aquifer and UFA show a more subdued response to rainfall events, which is indicative of good confinement, especially between the UFA and the surficial aquifer. The water level monitoring data shows that rainfall or lack of rainfall is the major controlling factor relative to the rate of surficial aquifer recharge at the NEWF. The water level monitoring data since pumping began at the NEWF shows that the pumping at 4.0 mgd is having a minimal impact on the surficial aquifer at the NEWF. Indeed, the more persuasive evidence establishes that the general decline in water levels that has been observed in the monitoring wells at the NEWF over the past several years is more likely than not attributable to the severe drought in the area and the onsite drainage features, and not the pumping at the NEWF.11 Moreover, the more persuasive evidence shows that following the start of pumping at the NEWF in October 2005, the water levels in the surficial, intermediate, and Floridan aquifers returned to the historic patterns of up and down response to rainfall events shown throughout the thirteen-year period of record: the surficial aquifer fills quickly (as it receives the rainwater directly) and empties quickly (through a combination of surface drainage, evapotranspiration, evaporation, and leakage), while the UFA responds with more gradual rising and falling (as water enters the aquifer through recharge areas and slowly percolates into the aquifer through more confined areas). The analysis of the water level data collected during APT-3 showed a similar trend in the rates of decline in the surficial aquifer as were reflected in the hydrographic record of the monitoring well data collected by the City since 1994. The natural, post-rainfall rate of decline under non-pumping conditions was consistent with the rate of decline observed during pumping conditions in APT-3. In sum, the interpretation of the water level data by the City’s experts was more persuasive than the interpretation by the District’s experts. Modeling of Predicted Drawdowns and Impacts The City utilized two different models to predict drawdowns from the proposed pumping at the NWWF and NEWF: the USGS “Mega Model” and the District’s District-Wide Regulation Model (DWRM). The models incorporated regional data published by the USGS and the District as well as site-specific data from the NEWF, including the lithologic information collected through soil borings and the hydrologic parameters of the aquifers calculated in APT-3. The models were calibrated and de-trended to remove “background conditions” (e.g., regional water level declines) so that the models would only show the predicted effects of the pumping. Once the calibration was complete, the models were run to simulate the effect of the pumping on the groundwater flows in the area. The models produced contour maps that showed the predicted drawdowns in the surficial aquifer as a result of the pumping. The USGS Mega Model predicted that pumping the NEWF at 8.77 mgd would result in drawdowns of approximately 0.5 foot in the surficial aquifer in and around the NEWF. The DWRM model predicted a 0.18 foot drawdown in the surficial aquifer in and around the NEWF when pumping the NEWF at 4.0 mgd, and a drawdown of 0.4 foot when pumping at 8.77 mgd. The same models were used to predict the “cumulative” drawdowns by taking into account pumping by existing legal users as well as the pumping at the NWWF. The cumulative models assumed pumping of 36.8 mgd from the City’s wellfields. The USGS Mega Model predicted that cumulative drawdowns in the surficial aquifer in and around the NEWF would be an additional 0.3 feet, with 8.77 mgd of pumping at the NEWF. The DWRM model predicted that the cumulative drawdowns in the surficial aquifer in and around the NEWF would be 0.4 foot with 4.0 mgd of pumping at the NEWF, and 0.6 foot at 8.77 mgd of pumping at the NEWF. The City utilized the 1995 data set of existing legal users in its cumulative DWRM modeling because that was the data set provided by the District. The difference between the 1995 data set and the more current 2002 data set is on the order of 20 mgd, which is inconsequential in comparison to the 1.1 billion gallons per day of withdrawals included in the model that are spread over the geographic extent of the District. The predicted drawdowns in the surficial aquifers in and around the NEWF would be considerably greater if the hydrologic parameters calculated by Mr. Yobbi were used in the DWRM model. For example, the District’s modeling predicted drawdowns between 1.0 and 1.2 feet in the surficial aquifer in and around the NEWF when pumping 1.5 mgd from the NEWF, 3.5 mgd from Combee, and 28.03 mgd from the NWWF. The wetlands experts presented by the parties agreed that the level of drawdown predicted by the City at the NEWF has the potential to adversely impact the wetlands on the site. The experts also agreed that there is no bright line as to the amount of drawdown that will adversely impact the wetlands. The City’s expert, Dr. Michael Dennis, testified that drawdowns in the surficial aquifer between 0.18 foot and 0.5 foot “probably” would not affect the wetlands at all, or at least “not measurably.” He also testified that drawdowns between 0.5 foot and one foot “are the drawdowns that you need to be concerned about.” The District’s expert, John Emery, testified that a drawdown in the surficial aquifer of 0.4 foot “could” adversely affect the wetlands if no mitigation is provided, but that a drawdown of 0.2 to 0.3 foot might not.12 The WIP is expected to increase the amount of water that gets to the wetlands on the NEWF site. However, the extent to which the WIP will increase the water levels in the wetlands and offset the predicted drawdowns in the surficial aquifer is unknown at this point. Limiting pumping at the NEWF to 4.0 mgd is reasonable and prudent based upon the uncertainty regarding the effectiveness of the WIP and the experts’ testimony regarding the level of drawdowns that likely would, and would not, adversely affect the wetlands at the NEWF. In sum, the more persuasive evidence establishes that the drawdown predicted at 4.0 mgd of pumping –- 0.18 foot (individually) and 0.4 feet (cumulatively) –- is not likely to adversely impact the already significantly degraded wetlands at the NEWF, particularly if the WIP is properly implemented. Demand Projections The City did not use the full 28 mgd allocated under its existing WUP. It pumped only 21 mgd in the 12 months preceding October 2003, when the permit was scheduled to expire; it pumped only 26 mgd in 2006; and the pumping for 2007 was expected to be approximately 1 mgd lower than the pumping in 2006. The City's WUP application contained population and demand projections for different years in the future. For 2014 (the permit expiration date proposed by the District), the “functional population”13 of the service area was projected to be 183,264 and the average demand was projected to be 29.5 mgd; for 2023 (the original permit expiration date requested by the City), the projections were 203,721 people and 32.8 mgd; and for 2018 (the permit expiration date now requested by the City), the projections were 192,176 people and 30.9 mgd. The projections in the WUP application were prepared in 2003, and City's primary consultant, Charles Drake, testified that the data was “accurate” and “reliable.” However, more recent data shows that the population projections in the WUP application were slightly understated. The more recent data is contained in the “Water Services Territory Population Estimates and Projections” reports prepared by the City's utility department in March 2006 and March 2007. The reports include estimates of the functional population for prior years, and projections of the functional population for future years. The estimates reflect the “actual” population for a given year in the past, whereas the projections reflect the “expected” population for future years. The estimates and projections in these reports, like the projections in the WUP application, were prepared in accordance with the methodology contained in the BOR. The District did not take issue with the projections in the reports or the WUP application. The estimated functional population of the service area in 2003, 2004, 2005, and 2006 exceeded the population projected for those years in the WUP application. On average, the projected populations for each year understated the “actual” populations by approximately 3,500 persons.14 Likewise, the population projections for future years in the March 2007 report are higher than the population projections for the same years in the WUP application. For example, the report projects that the functional population of the service area in 2014 will be 191,208 (as compared to 183,264 in the WUP application), and that population in 2018 will be 203,247 (as compared to 192,176 in the WUP application). The City presented “revised” population projections at the final hearing in City Exhibit 140. The revised projections were based on the projections in the March 2006 report, but also included data from the “water allocation waiting list” that is part of the City’s concurrency management system that was created by the City in response to legislation passed in 2005 requiring local governments to allocate and approve requests for water for new development. The population projections in City Exhibit 140 are 234,959 in 2014; 247,390 in 2018; and 264,556 in 2023. These projections include an additional 43,471 persons related to new development in the concurrency management system, as well as the additional 2,600 to 3,000 persons projected per year in the WUP application and the March 2006 report. The City failed to establish the reasonableness of the revised population projections. Indeed, among other things, the evidence was not persuasive that the additional population attributed to the new development in the concurrency management system is not already taken into account, at least in part, in the annual population increases projected in the March 2006 report.15 The most reasonable population projections for the service area of the City's utility are those in the March 2007 report.16 The record does not contain demand projections directly related to the population projections in the March 2007 report. However, demand projections for those population projections can be inferred from the WUP application (City Exhibit 1(a)(2), at 0036) and City Exhibit 140 (at page 0015). The 2014 projected population of 191,208 in the March 2007 report roughly corresponds to the projected population for 2018 in the WUP application (192,176) for which the projected demand was 30.9 mgd; and it also roughly corresponds to the projected population for 2008 in City Exhibit 140 (193,001), for which the projected demand was 28.7. Thus, in 2014, it is reasonable to expect that demand will be between 28.7 and 30.9 mgd. The 2018 projected population of 203,247 in the March 2007 report roughly corresponds to the projected population for 2023 in the WUP application (203,721) for which the projected demand was 32.8 mgd; and it also roughly corresponds to the projected population for 2009 in City Exhibit 140 (201,983), for which the projected demand was 30.2 mgd. Thus, in 2018, it is reasonable to expect that demand will be between 30.2 and 32.8 mgd. The demand projections in the WUP for 2014 (29.5 mgd) and 2018 (30.9 mgd) fall within the range inferred for the populations in the March 2007 report. Thus, even though the population projections in the WUP application for 2014 and 2018 are understated, the demand projections for those years in the WUP are still reasonable. The demand projections in City Exhibit 140 –- 35.3 mgd in 2014 and 36.6 mgd in 2018 –- are overstated as a result of unreliable population projections upon which they are based. Other Issues Duration of Permit The 1987 permit for the NWWF had a six-year duration, as did the original 1989 permit for the NEWF. The 1993 permit had a 10-year duration, but that permit did not increase the amount of authorized withdrawals; it simply combined the authorizations for the NWWF and the NEWF into a single permit. In this case, the City is requesting a permit that expires in 2018, which was a 15-year duration at the time the application was filed, but now is a 10-year duration. The District is proposing a permit with a six-year duration, expiring in 2014. The District is authorized to approve a WUP with a duration of up to 50 years. The District’s rules provide that the duration of the permit is to be determined based upon “the degree and likelihood of potential adverse impacts to the water resource or existing users.” The District’s rules require that in order for the District to approve a permit with a duration of more than 10 years, the applicant is required to present sufficient facts to demonstrate that such a permit is “appropriate.” Section 1.9 of the BOR provides “guidelines” regarding the duration of permits. The guidelines in the BOR are not binding on the District, but the nearly identical language in Florida Administrative Code Rule 40D-2.321 is binding on the District. The BOR provides that a six-year permit is to be issued for renewal permits “with modification to increase the quantity withdrawn by more than or equal to 100,000 gpd or 10% or more of the existing permitted quantities, whichever is greater.” The BOR and Florida Administrative Code Rule 40D- 2.321(2)(b) also provide that a six-year permit is to be issued “where the potential for significant adverse impacts are predicted.” The renewal permit that the City is seeking requests an increase of 8.7 mgd (from 28.1 mgd to 36.8 mgd) over the existing permitted quantities, which exceeds the 10 percent threshold in Section 1.9 of the BOR. Moreover, there is a potential for significant adverse impact from the renewal permit that the City is seeking. Accordingly, a six-year permit is appropriate under the District’s rules and the guidelines in the BOR. The City failed to demonstrate why a longer permit duration is appropriate under the circumstances of this case. District staff testified at the final hearing that the permit term should be calculated from the date the permit is issued, which will be some point in 2008. Therefore, the permit should have an expiration date of 2014. Offsite Impacts The City used the modeling described above to predict the drawdown in the UFA from the proposed pumping in order to determine whether there will be any adverse impacts on existing legal users. The predicted drawdown in the UFA in the vicinity of the NEWF ranges from 1.6 feet to 2.4 feet with 4.0 mgd of pumping at the NEWF, and between 3.4 feet and 5 feet with pumping at 8.77 mgd. The predicted drawdown in the UFA in the vicinity of the NWWF ranges from 10.0 to 14.0 feet, with 28.03 mgd of pumping at the NWWF.17 These predicted drawdowns are not expected to have any adverse impacts on existing legal users that have wells in the UFA. Most permitted wells in the UFA use vertical turbine pumps, which can easily accommodate fluctuations in water levels of five feet or more. The City has not received any complaints from existing users since it began pumping 4.0 mgd at the NEWF in October 2005. The pumping at the NWWF, which has been ongoing for more than 20 years, has not caused any adverse impacts to existing legal users. The City is required under the existing WUP to respond to any adverse impact complaints from existing legal users, and it is required to implement mitigation, as needed. In short, City is required to do whatever is necessary (e.g., relocating or increasing capacity of pump, lowering pipes) to return any well impacted by the pumping to its prior function. The City did not evaluate the potential impacts of its proposed pumping on unpermitted wells because the District does not maintain a database of unpermitted wells. However, the City acknowledges that if its pumping impacts an unpermitted well, it will be obligated to mitigate those impacts in the same manner that it is required to mitigate impacts to existing permitted users. The predicted drawdowns for water bodies in the vicinity of the NWWF and the NEWF that have designated Minimum Flows and Levels (MFLs) -- Lake Bonny, Lake Bonnett, and the Cone Ranch wetlands -- are minimal, on the order of 0.1 foot. The City evaluated the impacts of pumping on contaminated sites listed by the Department of Environmental Protection (DEP) in the vicinity of the NWWF and NEWF. Based upon the results of the modeling conducted by the City, there is no reason to expect that pumping at the NWWF and/or NEWF will have any measurable impact on those sites or lead to pollution of the aquifer. Potential Impacts of NWWF Pumping The only concern expressed by the District with respect to the pumping at the NWWF relates to the potential environmental impacts of the pumping on Lake Bonny and Lake Bonnett. The City agreed to include those lakes in its EMMP. Combee Combee is located approximately four miles south of the NEWF. There is a relatively thick clay confining unit at Combee, which, according to the District, makes it a better location for water withdrawals than the NEWF. The District conducted an APT at Combee in 2006. The hydrologic parameters derived from the APT, and the “preliminary modeling” performed by the District show that the City may be able to withdraw at least 3.0 mgd from wells at Combee. The proposed permit authorized pumping of 3.5 mgd from Combee. The proposed permit also included a phasing schedule pursuant to which pumping at Combee would be decreased to 3.0 mgd if pumping at the NEWF reached 4.0 mgd. The City expressed an interest in obtaining water from Combee throughout the permitting process. However, the City represented at the outset of the final hearing that the Combee well is “off the table because the City wishes to maximize the withdrawal allocation from [the NEWF].” The City stated in its PRO that it is “willing to consider permitting a production well at [Combee] as a potential mitigation resource, should unexpected adverse impacts require the City to divert production to a back-up resource.” The District stated in its PRO that the Combee well is “available for mitigation purposes," and that the City “should be encouraged to apply for a WUP for withdrawals from Combee up to 3.0 mgd to provide additional mitigation for pumping from the [NEWF].” Pump rotation Rotation of pumping between the wells in a wellfield is a standard practice, and it can be an effective mitigation technique. The City utilizes well rotation programs at the NWWF and the NEWF in order to minimize the stress on the production aquifers. Rotating pumping between the production wells at the NEWF is particularly appropriate because several of the wells are located in very close proximity to wetlands. Rotating the pumping will help to minimize the potential for adverse impacts to the wetlands. The actual rotation schedule is an operational decision that is made based upon observed conditions at the wellfield site, rather than something that is typically included in the WUP. Conservation and Reuse The City has a four-tiered conservation rate structure, modeled after the District’s graduated water-rates prototype. The rate structure imposes higher unit costs as individual consumption increases, thereby discouraging wasteful uses of water. The City has a comprehensive leak detection program aimed at preventing the loss of water within the City’s water distribution system. This program has helped to reduce the per- capita per-day consumption rate for the City by reducing the volume of water that is wasted before it is delivered to the consumer. The City has implemented irrigation restrictions aimed at reducing the quantities of water used by domestic customers for lawn and garden watering. The per capita rate of water consumption is a measure of the effectiveness of a water conservation program; the lower the figure, the better. The City’s per capita rate has increased in recent years, but its adjusted gross per capita rate has decreased. The adjusted gross per capita rate takes into account “significant users,” which are defined as non-residential customers other than golf courses that use more than 25,000 gallons per day or that represent more than five percent of the utility’s annual water use.18 The City’s per capita rate in 2005 was 145.69 gallons per day, and its adjusted gross per capita rate in that year was 132.01 gallons per day. The adjusted gross per capita rate may not exceed 150 gallons per day within the SWUCA. Thus, the City will be required to continue its conservation programs (and implement additional programs, if necessary) to ensure that its adjusted gross per capita rate does not exceed 150 gallons per day over the life of the permit. A portion of the City’s treated wastewater is reused for cooling at the City’s McIntosh Power Plant pursuant to a permit from DEP under Chapter 403, Florida Statutes. The DEP permit, No. FL0039772 (Major), states in pertinent part: Industrial Reuse: Effluent is reused . . . as a non-contact cooling water at the City of Lakeland McIntosh Power Generating Plant. The volume of water used on a daily basis fluctuates on an as needed basis. There are no restrictions on the volume that can be routed to the reuse system. The power plant evaporates water in the cooling process or returns cooling water into the Glendale WWTP for final treatment in the manmade wetlands treatment system. The reuse in the power plant is not required as effluent disposal. . . . . The remainder of the City’s treated wastewater is “blended” with the water used at the power plant in order to meet the conductivity standards in the DEP permit and the conditions of certification for the power plant and/or directly discharged into an artificial wetland system that ultimately discharges to the Alafia River. Section 3.1 of the BOR (at page B3-2) provides that “Water Use Permittees within the SWUCA who generate treated domestic wastewater are encouraged to demonstrate that . . . 50% of the total annual effluent flows is beneficially reused.” (Emphasis supplied). The BOR lists a number of uses of treated wastewater that are considered to be beneficial reuse. The list includes “industrial uses for cooling water, process water and wash waters” and “environmental enhancement, including discharges to surface water to replace withdrawals.” The City’s use of treated wastewater for cooling at the McIntosh Power Plant is a beneficial reuse under the BOR. The treated wastewater directly discharged by the City into the artificial wetland system is not a beneficial reuse under the BOR because it is not replacing surface water withdrawals. The BOR requires all users within the SWUCA to investigate the feasibility of reuse, and requires the implementation of reuse “where economically, environmentally and technically feasible.” The City has not recently undertaken a study or otherwise evaluated the feasibility of increasing its reuse. The draft permit attached to the District's PRO includes a specific condition requiring the City to "provide a comprehensive study of reuse opportunities encompassing the [City's] water, wastewater, and electrical utilities systems" by January 1, 2009.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue WUP No. 2004912.006 with the terms and conditions contained in the draft permit attached to the District’s PRO, except that: The 2014 population referenced in the permit shall be 191,208; The adjusted gross per capita rate shall not exceed 150 gallons per day; Special Condition No. 2 shall be amended to authorize withdrawals from the NEWF at 4.0 mgd annual average and 4.8 mgd peak month, and the quantities listed in the Withdrawal Point Table for the NEWF wells shall be adjusted accordingly; Special Condition No. 4 shall be replaced with a reference to the EMMP and the conceptual WIP attached to the City’s PRO, and the list of monitoring stations in the EMMP shall be amended to include Lake Bonny and Lake Bonnet; and An additional specific condition shall be added encouraging the City to pursue a WUP for the Combee site for future water needs and/or for additional mitigation of the impacts of pumping at the NEWF. DONE AND ENTERED this 4th day of January, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 4th day of January, 2008.
The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact DER is the Florida administrative agency which has the authority to administer and enforce the provisions of the Florida Safe Water Drinking Act, and the rules and regulations promulgated thereunder. (See Prehearing Stipulation). Respondent is a natural person and citizen of the State of Florida. Respondent owns and is responsible for the construction of a potable water distribution main extension ("the facility") which serves a subdivision known as High Bluff Acres-near the community of Midway in Gadsden County, Florida. (See Prehearing Stipulation). On February 1, 1980, Respondent was issued construction permit number DS20-27385 for the facility. The construction permit described the facility as a potable water distribution main extension to the Talquin Electric Company's Midway water- system. The project was to be constructed with approximately 940 linear feet of four inch PVC valves and appurtenances. Specific condition number 15 of the permit restricted operation of the extension until department approval was issued. This approval would be granted upon receipt of certification by the engineer of record as to construction in accordance with the approved plans and specifications and receipt of two satisfactory bacteriological analyses. DER has not received this information and had not issued an approval for use of the facility. The construction permit expired on September 1, 1981. (See Prehearing Stipulation). Respondent modified the facility by constructing it with 550 feet of one inch to one and one-half inch PVC water mains. (See Prehearing Stipulation). DER conducted an inspection of the facility on February 23, 1982. The facility was found to be in use without final DER approval. By letter dated February 26, 1982, DER notified Respondent of his non-compliance with Chapter 17-22, Florida Administrative Code, and requested Respondent to submit specified compliance items. (See Prehearing Stipulation). In October of 1982, DER personnel contacted Respondent . by telephone. Respondent agreed to obtain a permit renewal and modify the unauthorized water line as soon as funds in the form of rent were released by the Department of Community Affairs (DCA). On November 1, 1982, DCA notified DER that payments were being made. (See Prehearing Stipulation). On June 8, 1983, DER notified Respondent of his non- compliance with Chapter 17-22, Florida Administrative Code, and requested a reply on actions to be taken to correct the deficiency. By letters dated October 18, 1984, and December 17, 1984, DER notified Respondent that the facility was not approved for use. Respondent was further requested to inform DER as to the status of the facility. DER received no response to these requests. (See Prehearing Stipulation). The facility was not constructed in accordance with DER-approved plans, and DER has issued no written approval or consent for alterations to the system. (See Prehearing Stipulation). Respondent placed the facility in service without submitting a certification of completion and a copy of satisfactory bacteriological results to DER for approval and clearance. (See Prehearing Stipulation). The facility is not designed to provide maximum hourly system demand without development of distribution pressure lower than 20 psi. (See Prehearing Stipulation). DER has incurred costs and expenses in the pursuit of this case in the amount of $453.50. (See Prehearing Stipulation). Respondent's facility consists of distribution and storage facilities only and does not have any collection or treatment facilities. It obtains all its water from and is not owned or operated by the Talquin Electric System. Further, Respondent is not a carrier which conveys passengers in interstate commerce. (See Prehearing Stipulation) The public water distribution system constructed by Respondent is connected to twenty dwelling units in twelve structures. The High Bluff Acres subdivision is a government- subsidized, but privately-owned, low-income housing development, wherein DCA, acting on behalf of the U.S. Department of Housing and Urban Development (HUD), subsidizes the payment of rent for the housing. Respondent entered into several agreements on behalf of Salter, Stephens and Thompson, with the DCA to rehabilitate existing structures at High Bluff Acres and thus qualify for the Section 8 Moderate Rehabilitation Housing Assistance Program (HAP) established by HUD. The purpose for entering into the HAP contracts is to provide low cost housing to low income persons. These agreements were entered into over a period of several months during 1981 and 1982. Upon satisfactory completion of the rehabilitation pursuant to the agreements, Respondent entered into a HAP contract for each structure in High Bluff Acres, for a total of twelve structures (20 dwelling units). The HAP contract establishes the contract rent that can be allowed for each individual dwelling unit in a structure (the contract covers one structure). The contract rent is calculated according to a formula established by HUD for such purposes, and includes monetary allowances for utilities or other services which are provided by the owner. It does allow the lessor to recover his capital expenses in rehabilitating an individual housing unit. DER Exhibits 3 and 4 are two of the twelve HAP contracts entered into by the Department of Community Affairs and Respondent, Lex Thompson. Each of these contracts has an Exhibit B which is entitled "statement of services, maintenance and , utilities to be provided by owner." These exhibits show that Respondent has agreed to provide water to the units under the HAP contract. Contract rents paid to Respondent as authorized agent for the partnership include an allocation of money to reimburse Respondent for providing water to the tenants in the dwelling units. However, subsequent to Thompson's and DCA's entering into the contracts for payment of these rental subsidies, Respondent notified DCA that he had incurred additional capital expenses. Since his rental payments were already at the maximum allowable rate, however, Respondent did not seek to modify the aforementioned contracts because the amendment would not result in any greater payment of monies to him. At no time has Respondent amended the terms of the HAP contracts with respect to provision of water to the tenants at High Bluff Acres. He is still receiving the reimbursement for provision of water to tenants. The general partnership which had been receiving contract rents for the dwelling units was dissolved in May, 1985, and the contracts for each structure were assigned to various individuals. Respondent, individually, owns one structure and his wife owns another. DER has received no potable water quality or quantity complaints regarding the High Bluff Acres subdivision. Moreover, the potable water system existing in the High Bluff Acres subdivision does not constitute a present threat to the public health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein order the following corrective actions: That within 45 days, Respondent shall hire an engineer registered in Florida to design a new distribution system for High Bluff Acres or modifications to the existing system, and submit a completed application to the Department for a permit to construct or modify the system. That within 60 days of issuance of the permit, Respondent shall have the distribution system installed, tested(including pressure testing, bacterial testing, disinfectant-testing) and shall have the engineer sign and seal the plans indicating to the Department that the system conforms with the approved plans, and both DER and American Water Works Association standards. It is further RECOMMENDED that Respondent be ordered to pay the Department's costs and expenses in the amount of $453.50, and that same be paid to the Department by cashier's check within 30days. DONE and ORDERED this 4th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESL1NG Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1985 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 13). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 4 is adopted in substance (See Finding of Fact 17). Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 18). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 19). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 22). Proposed Finding of Fact 8 is adopted in substance (See Finding of Fact 21). Rulings on Respondents Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 1). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 2). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 3). Proposed Finding of Fact 4, first sentence, is adopted in substance (See Finding of Fact 4). The second sentence is rejected as being unsupported by the evidence and irrelevant. Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 5). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 6). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 7). Proposed Finding of Fact 8, first sentence, is adopted in substance (See Finding of Fact 8). The remainder of Proposed Finding of Fact 8 is rejected as irrelevant. Proposed Finding of Fact 9 is adopted in substance (See Finding of Fact 12). Proposed Finding of Fact 10 is adopted in substance (See Finding of Fact 14). Proposed Finding of Fact 11 is adopted in substance (See Finding of Facts 19 and 20). Proposed Finding of Fact 12 is rejected as unsupported by the evidence, irrelevant and conclusory. Proposed Finding of Fact 13 is adopted in substance (See Finding of Fact 23), except that it is rejected as it relates to a potential threat because that portion is unsupported by the competent, credible evidence. COPIES FURNISHED: Clare E. Gray, Esquire Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William L. Hyde, Esquire 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302 Victoria Tschinkel Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereignty Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management systems, and three single-family docks in Vero Beach, Indian River County, Florida.
Findings Of Fact Parties Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island. John's Island is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Robert Prosser uses the Lagoon for boating, kayaking, and fishing. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Michael Casale, Orin Smith, and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that would be affected by the proposed project. Respondent/Applicant Oculina Bank owns the project site, which it acquired through foreclosure, and is named in the agency action that is the subject of this proceeding. The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River- Malabar to Vero Beach Aquatic Preserve. It is also an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be inundated at other times as a result of large storms. The wetlands along the western shore of the Lagoon play a major role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook move into the wetlands and seek out shallow areas to avoid predation by larger fish. When the waters of the Lagoon recede, the juvenile tarpon and snook remain in the wetlands where the predators cannot go. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. During the dry season, the Mosquito Control District pumped water into the impounded wetlands to keep them wet. It discontinued the seasonal pumping many years ago. There was a dispute about whether the wetlands on the project are isolated or are connected to the Lagoon. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places, as low as 2.5 feet in spots on the north and south berms and 3.8 feet on the shore-parallel berm. Therefore, the wetlands can be described as isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above these lowest berm elevations. On the other hand, the Lagoon and the wetlands are connected whenever the water rises above the lowest berm elevations. Petitioners' experts said the project site is still inundated seasonally by waters of the Lagoon, but they did not address the frequency and duration of the inundation. The more persuasive evidence is that the frequency and duration of inundation has been reduced by the impoundment berms. There are almost 14 acres of wetlands impounded by the berms. The impoundment berms and fill along the road comprise 1.71 acres. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the loss of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. Nevertheless, Petitioners' experts believe the wetlands still have high functional value. Dr. Gilmore believes this site is "one of the critical habitats maintaining regional tarpon fisheries." Dr. Gilmore found juvenile tarpon, among other species, in the wetlands on the site. The project site provides nesting, denning, and foraging habitat for numerous birds and other wildlife. Petitioners presented evidence that there might be a small fish, rivulus marmoratus, that uses the site, which is a listed "species of special concern." To the north and south of the project site are salt marsh wetlands that have been restored. North of the project site is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by improving their connection to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. Oyster shells were also observed from 50 feet to 400 feet (the limit of the survey) offshore. There was a dispute whether a significant number of live oysters are present. Oculina Bank's and the Department's experts found no live oysters, but Petitioners' expert found some live oysters and believes they represent an important resource. The rules of the Board of Trustees require greater protection for areas with submerged resources. Rule 18- 20.003(54) defines a Resource Protection Area 1 ("RPA1") as an area within an aquatic preserve which has "resources of the highest quality," which may include marine grassbeds and "oyster bars." A Resource Protection Area 2 ("RPA2") is defined as an area which is "in transition" with declining RPA1 resources. The grassbeds in the area of the proposed dock constitute RPA1s. The oysters in the area constitute an RPA2. The Proposed Home Sites, Access Drive, and Surface Water Management Systems The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. The houses would be connected to public water and sewer lines. The existing impoundment berm along the north boundary of the site and the south end of the frontal berm would be "scraped down" to an elevation of one foot. The re-graded area would be planted with salt cordgrass. If there are rivulus marmoratus using the site, scraping down the berms could destroy some of the crab holes they use for habitat. A culvert will be installed beneath the drive at the north side of the proposed project. The culvert at the north and the removal of a portion of the impoundment berm on the south would allow more frequent and prolonged exchange of water between the Lagoon and the interior of the site. Despite the proposed culvert and removal of a portion of the frontal impoundment berm, Dr. Cox and Dr. Gilmore said the elevated (about seven feet above mean high water) home sites would act as a barrier to water. However, Ms. Garrett-Krauss said the pre- and post-construction condition would be the same. Petitioners failed to prove that the elevated home sites would prevent the interior wetlands from being inundated. Two of the ponds on the site would have to be filled to create the home sites. There is no proposal to establish new ponds. Dr. Gilmore believes the ponds are important for the nursery function of the wetlands. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. At the hearing, Petitioners claimed that a portion of the proposed conservation area was subject to a DOT easement, but they were wrong. Using the Uniform Mitigation Assessment Method ("UMAM") in Florida Administrative Code Chapter 62-345, the parties analyzed the functional values of the site in its pre- and post-project condition. The UMAM analyses conducted by the Department and Oculina Bank showed the project resulted in a gain in functional value for fish and wildlife. Petitioners' UMAM analysis showed a net loss of functional value. The UMAM analyses conducted by Oculina Bank and the Department did not adequately address the loss of the ponds or the impact on rivulus marmoratus. Petitioners contend that the project would have less impact if it were constructed on the most western portion of the site, but Petitioners failed to prove this allegation. Petitioners contend that the impacts of the project have not been minimized because the houses could be smaller. Petitioners do not say how small a "minimized" house should be. Of course, meeting the requirement to minimize impacts does not mean only teepees are allowed. The Department has some discretion in determining, under the circumstances of each permit application, whether reasonable reductions in impacts have been made by a permit applicant. Oculina Bank proposes to build on the most disturbed area of the site and it made costly1/ design changes to reduce impacts to wetlands. These factors, if combined with a demonstration that Oculina Bank would restore the site to create a net improvement for fish and other wildlife, would provide a reasonable basis for the Department to determine that the project impacts were minimized. However, Respondents' evidence that the project would result in a net environmental improvement was contradicted by Petitioners' evidence regarding the refuge and nursery functions of the wetlands and the project's adverse impacts to those functions. Petitioners' evidence on this point was not completely rebutted by Respondents. Oculina Bank did not provide reasonable assurance that the proposed project will not adversely impact the value of the refuge and nursery functions provided by the wetlands. This failure of proof was due mainly to insufficient evidence regarding (1) the interrelationship of exisiting channels and open water features on the site, (2) which features are natural and which are man-made, (3) how those features are used by fish, (4) how they will be altered by the project, and (5) how the nursery and refuge functions of the wetlands would be affected.2/ Under the circumstances of this case, it was not sufficient to merely show that the wetlands would be "re-connected" to the Lagoon. The finding made above should not be confused with Petitioners' argument that the non-natural conditions should be maintained on the site. No such finding is made. The Department did not consider the secondary impacts of the home sites, access drive, and surface water management systems because it had determined that there would be a net improvement in environmental value. However, the loss of refuge and nursery functions would prevent a net improvement in environmental value and it would cause secondary impacts to the tarpon and snook fisheries. Petitioners identified other secondary impacts, such as the impacts of human disturbance, which it said should have been considered. The other impacts discussed by Petitioners were considered by the Administrative Law Judge and it is found that those impacts are insignificant. The Proposed Docks Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Petitioners claim the docks would cause a navigation hazard. However, because the docks meet the length limit specified in rule chapter 18-21, they are presumed not to create a navigation hazard. Petitioners' evidence was not sufficient to rebut this presumption. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. The consolidated permit and authorization limits the vessels that can be moored at the docks to vessels with a draft that would allow at least 12 inches of clearance above the submerged lands at mean low water so no harm would be caused to submerged resources. Signs would be posted at each dock providing notice of this restriction. A dock owner is unlikely to know what size boat he or she is limited to, based on a permit condition which is worded this way. To provide reasonable assurance that submerged resources in the area are protected, the permit condition should be stated as a maximum permissible draft. The Department determined that the impacts of the docks, such as the installation of the pilings and shading of seagrasses would de minimis. That determination is supported by a preponderance of the evidence. Petitioners claim the Department failed to consider shading, prop wash, and scarring to seagrasses and oyster beds, and increased turbidity. Considering the use of grated decking, restricting vessels to a maximum draft, and other related factors, the more persuasive record evidence establishes that these potential impacts would be reduced to insignificance. Oculina Bank made alternative offers to satisfy the public interest requirement of the Department and Board of Trusteees rules; the first was to contribute $25,000 to the Marine Resource Council to remove five acres of non-native, invasive vegetation and plant mangroves on Pelican Island National Wildlife Refuge, which is located in the Indian River Lagoon; the second was to purchase one tenth (0.1) of a credit from the CGW Mitigation Bank. Petitioners objected to the offers as inadequate for various reasons, but as explained in the Conclusions of Law, neither offer is necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection issue a Final Order that denies the Consolidated Environmental Resource Permit and Sovereignty Submerged Land Authorization to Oculina Bank. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2013.
The Issue Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis of Review Handbook for Environmental Resource Permit Application, are an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, South Florida Water Management District (SFWMD), is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district, with its principal office in West Palm Beach, Florida. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm), owns three lots in Unit 11 of the Indian Trail Improvement District, located in northwest Palm Beach County, Florida. Intervenor 1000 Friends of Florida, Inc., is a not-for- profit, tax exempt membership corporation, organized and existing under the laws of the State of Florida. By letter dated March 19, 1998, Royal Palm notified SFWMD that Royal Palm was entitled to No Notice General Permits for Activities in Uplands (NNGP) for three of the lots which it owns in Unit 11, Lots 61, 245, and 247. Royal Palm intends to build one single-family home on each of the lots. The proposed development of the lots would include individual septic tanks and stormwater retention ponds. By letter dated April 9, 1998, SFWMD informed Royal Palm that SFWMD staff had determined that the three lots do not qualify for no-notice general permits for single family home construction. As part of the basis for denial of the NNGPs, the April 9, 1998, letter stated: Reasonable assurances have not been provided to show that the proposed system or project is not part of a larger common plan of development. See Rule 40E-400.315(1)(f), Fla. Admin. Code. Royal Palm Beach Colony is the owner of approximately 170 lots within Unit 11 of the Indian Trail Improvement District, and the three proposed lots appear to be merely part of this large common plan of development. As an additional basis for denial, the April 9 letter stated: Reasonable assurances have not been provided to show that construction and/or operation of the proposed system will not cause adverse secondary impacts to the water resources, including, but not limited to, significant interference with the construction and operation of a regional stormwater system needed for adequate flood protection and stormwater treatment in the Unit 11 area. See Rule 40E-4.301(1)(f), Fla. Admin. Code. Royal Palm filed a Petition for Administrative Determination of the Invalidity of the above-cited rules, Rule 40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida Administrative Code. Also being challenged are those portions of SFWMD's "Basis of Review Handbook for Environmental Resource Permit Applications" (BOR), which discuss secondary impacts, Sections 4.1.1(f) and 4.2.7(a)-(d). SFWMD's Environmental Resource Permit (ERP) program has four different types of permits: NNGPs, noticed general permits, standard general permits, and individual permits. The permits are grouped according to degree of potential impact and, correspondingly, according to degree of regulatory review. NNGPs are for very minor activities that have no potential to cause adverse impacts or harm to water resources provided that the criteria in the rule are met. A NNGP typically receives no review by SFWMD staff. An applicant reviews the criteria, and if the proposed project meets the criteria the project may be undertaken without notification to or approval by SFWMD. The degree of regulatory review for water management systems that do not qualify for NNGPs will vary. A system that qualifies for a noticed general permit pursuant to Rule 40E-400, Subpart C, Florida Administrative Code, will be reviewed within 30 days of receipt of notice, and if the criteria listed in the general permit rule are met it is presumed that the project meets all SFWMD's standards and is permittable. If the system does not fit within a noticed general permit and if the proposed system is less than 100 acres total size or has less than one acre of wetland impact, the project will be reviewed as a standard general permit pursuant to Rule 40E-40, Florida Administrative Code. Standard general permits are reviewed and issued by SFWMD staff, and unlike the noticed general permits, there are no presumptions that if certain limited criteria are met that all the SFWMD standards are met. The proposed project is reviewed to determine if reasonable assurances have been provided that all standards have been met. Finally, if a proposed water management system is greater than 100 acres or entails more than one acre of filled wetlands, an individual environmental resource permit is required. As with standard general permits, these applications are reviewed to determine if the applicant has provided reasonable assurance that all SFWMD standards are met. Individual environmental resource permits require permit authorization from SFWMD's governing board. Unlike the noticed general, the standard general, and the individual environmental resource permits, the NNGP does not require any regulatory review. An individual minor system fitting within the specific criteria for a NNGP can proceed with the activity without noticing SFWMD. Such a permit is very similar to an exemption from the permitting requirements. The use of a NNGP was not intended for approval of water management systems that contain shared or common water management facilities, such as a common drainage system for a housing development. Such systems require regulatory review to ensure that the system does not cause adverse water quality, water quantity, or environmental impacts. To allow a series of individual projects to have authorization to proceed under a NNGP, when together they are part of a larger common plan of development or sale, cumulatively would have a significant adverse impact to flood protection and environmental protection. Such master systems are to have regulatory review under one of the other three SFWMD permits. Thus, the requirement that a project permitted pursuant to a NNGP not be part of a larger common development or sale was placed in Rule 40E-400.315(1)(f), Florida Administrative Code. Without such a requirement, it would be possible to development a larger system without regulatory review by permitting individual systems within the larger system using a NNGP. The term "not part of a larger common plan of development or sale" contained in Rule 40E-400.315(1)(f), Florida Administrative Code, originated in Section 403.813(2)(q), Florida Statutes, which contains exemptions from permitting under Chapter 373, Florida Statues. In developing Rule 40E-400.315(1)(f), SFWMD did not further define the term because the plain meaning of the term was deemed adequate, as it was by the Florida Legislature when it did not define the same term in Section 403.813(2)(q). The plain meaning of the term is consistent with SFWMD's regulatory scheme for permitting water management systems. The most minimal permit authorization, the NNGP, should not authorize projects that are part of a larger common plan of development or sale because the larger projects are more likely to have larger water resource impacts. Interpretations of the term "part of a larger common plan of development" by staff from SFWMD are consistent. The interpretations indicate that the individual project and the larger master plan have shared or common water management systems. The focus is on whether common infrastructure would be needed to carry out the individual project. In its permitting program, SFWMD looks at all adverse impacts to water resources, whether direct, secondary, or cumulative. When evaluating secondary impacts, SFWMD looks for the same adverse impacts on water resources that it would for direct impacts, such as adverse impacts on the functions of wetlands or surface waters or adverse impacts on water quality. SFWMD interprets a secondary impact as some impact, other than a direct impact in the footprint of the proposed project, which is closely linked and causally tied to proposed activity to be permitted. Section 4.2.7, BOR sets guidelines for how SFWMD considers secondary impacts from water management systems. In developing Section 4.2.7, SFWMD applied existing case law concerning secondary impacts. Section 4.2.7(a), BOR, regulates construction, alteration, and reasonably expected uses of a proposed system so that the functions of wetlands to fish and wildlife and listed species are protected from adverse impacts caused by activities in adjacent uplands. Such secondary impacts may result, for example, from disturbance during adjacent upland construction or disturbance due to the close proximity of human habitation to a wetland where none previously existed. Section 4.2.7(a), BOR, gives examples of secondary impacts, and provides a mechanism in the form of a buffer that creates a presumption that provides reasonable assurance that secondary impacts to habitat functions of wetlands will not be adverse, assuming a wetland is not being used by a listed species for nesting, denning, or significant feeding habitat. Section 4.2.7(b), BOR, protects existing upland nesting or denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dens to be used successfully by such species. Section 4.2.7(c), BOR, looks at potential adverse secondary impacts to significant historical and archeological resources. The intent of the section is to allow consideration of secondary impacts of a project that may have a very minor impact from construction, but more serious implications once in operation. For example, a water control structure that may have a footprint of only a tenth of an acre may result in greater water velocities that would harm submerged archeological resources. Section 4.2.7(d), BOR, considers specific water resource impacts from future project phases and activities that will be very closely linked and causally related to the proposed system. This section seeks to prevent future impacts that may be necessitated by a proposed project design. As part of the analysis, SFWMD will consider the impacts of the intended or reasonably expected uses of future activities on water quality and wetland and other surface water functions.
Findings Of Fact Co-Respondent, Howard Thompson, applied to the Department of Environmental Regulation (DER) for a dredge and fill permit and water quality certification authorizing him to place approximately ten cubic yards of fill dirt waterward of the mean high water elevation in a certain artificially dredged ditch. That ditch presently connects a formerly isolated wetland area, through a roadside ditch, to the Matanzas River. The project site lies on Anastasia Island, in a coastal dune zone, near the community of Butler Beach, in St. Johns County. The artificially constructed ditch was originally dredged to connect the isolated wetland area with waters of the State (Matanzas River) for the purpose of drainage of the wetland area in the interest of mosquito control. The ditch is bordered by parallel streets on each side. Residential lots and houses lie between the streets and the ditch. Single family residences are built on both sides of the ditch upstream of the proposed fill site, with their back yards bordering the ditch. The Petitioner and Petitioner's witnesses own property on the ditch, upstream of the proposed fill site. Mr. Jeremy Tyler was accepted as an expert witness in the fields of biology and the water quality impacts of dredge and fill projects. It was thus established that the water quality standards at issue will not be violated by the project. Although there is presently some tidal exchange with the Matanzas River, this provides little or no ecological benefit due to the paucity of water flowing through the ditch in either direction under normal weather conditions. The wetland area which presently is connected to the Matanzas River through the ditch system has a low value in terms of functions it performs in enhancing recreational value, marine productivity, conservation of fish or wildlife and their habitats, for purposes of the criteria set forth in Section 403.918(2)(a) 1-7. This is because of its very small size and because of its isolation from other waters of the State, being connected only by the small drainage ditch characterized by very low flows of water during normal periods of rainfall and because of the low level of tidal exchange between the wetland and the adjacent waters of the State. Mr. Tyler established that should the proposed plug be placed in the ditch, that the relative value of the functions performed by the wetland area will not be measurably altered in terms of either improvement of those functions or their degradation. The ditch itself has a very low value in terms of marine productivity, conservation of fish and wildlife or their habitats and the other criteria in the section cited above because it is simply an artificial ditch cut through a pre- existing upland and is not characterized by a significant growth of beneficial marine or aquatic plant species, nor by diversity of other marine or aquatic life forms which could possibly be degraded as to their diversity or as to the quality of their habitats by installation of the fill at the proposed location. Thus, the water quality criteria of Chapter 17-3 and 17-12, Florida Administrative Code, will not be violated by the installation of the fill and completion of the project, nor will the above considerations related to the public interest, enunciated in the Section cited above, be adversely affected by the project. The Petitioner and the Petitioner's witnesses are presently experiencing some flooding caused in part by fill placed in the ditch at another point by another property owner without the authorization of a permit. These persons have experienced flooding which has caused the death of flowers and shrub plants and trees in their yards because of elevated water levels resulting from the fill already placed in the ditch. The Petitioner established that if the ditch is plugged by the subject project, the flooding condition will be exacerbated and will further damage his and his witnesses' property. There is a substantial likelihood of increased mosquito infestations caused by the plugging of the ditch as the Petitioner and his neighbors are presently experiencing a relatively severe problem with mosquito infestation which prevents them from using their property for various outdoor pursuits more frequently than in the past before any fill was placed in the ditch. The Department's witness, Mr. Tyler, acknowledged that ponding of water and flooding will likely result if the plug is placed in the ditch. The flooding will impinge on the property of the Petitioners to a greater extent than is presently the case because of the different location of the plug from the present, unauthorized fill already been placed in the ditch. The Petitioner did not produce an expert witness in the fields of hydrology, horticulture, nor in public health (with regard to the mosquito infestation complaints). Petitioner established however, given the testimony concerning the lack of flooding and lessened mosquito infestation before the present fill was placed in the ditch, and the likely result of increased flooding because of the location of the proposed fill, so as a sufficient basis by lay opinion testimony that increased flooding will occur and that the flooding has been and will be the direct cause of the death of shrubbery, trees and flowers in the yards of homeowners upstream from the fill site. The presently severe mosquito infestation will likely be exacerbated. It has thus been established that increased flooding will occur if the fill is placed in the ditch downstream of property owned by the Petitioner and Petitioner's witnesses. There is also a substantial likelihood that an increased mosquito infestation will result in the area of their residences because of the lack of drainage of the flooded area which can only be alleviated by percolation and evaporation at very slow rates if the present drainage ditch is filled further by completion of the subject project.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent Department of Environmental Regulation deny the dredge and fill permit application no. 551136302 of Howard Thompson. DONE and ENTERED this 4th day of February, 1987 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987.
Findings Of Fact The Petitioner, E. F. Guyton, has filed an application for a permit which would allow the dredging of a boat slip and construction of a sedimentation basin with boat storage, specifically requiring the excavation of a boat basin, access canal, and access channel on his property which is located on the west shore of Crescent Lake, in Putnam County, Florida. The permit application number is 54-6806. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has the responsibility of appraising those applications such as the one submitted by the Petitioner, E. F. Guyton, and making a decision to grant or deny that permit. The authority for such action on the part of the Respondent resides in Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code. This cause comes on for consideration based upon the Respondent's letter of intent to deny the application, as dated August 22, 1978, after which the Petitioner has filed its petition challenging that intent to deny and requesting that the permit be granted. The petition in behalf of the Petitioner was received by the office of the Respondent on September 8, 1978. It was subsequently assigned to the Division of Administrative Hearings for consideration and that Notice of Assignment was dated September 28, 1978. The proposal for permit calls for excavation of a boat basin 100 feet wide and 480 feet long, leading into an access canal 25 feet wide and 500 feet long. This excavation is in the vicinity of an existing intermittent natural stream. The proposal would call for the removal of approximately 21,000 cubic yards of silt and sand, landward of mean high water. The excavation would be accomplished by use of a dragline to a depth of -2.0 feet MSL. The basin and canal slopes would be 2:1 and stabilization of slopes would be assured by riprap and grassing. A concrete spillway would be constructed at the upper end of the basin to direct the stream flow into the basin. In addition, the proposal calls for the dredging of an access channel through the shallow littoral zone of Crescent Lake to the mouth of the proposed access canal. The dredging involved with the access channel would cause the removal of 400 cubic yards of sediment from an area 250 feet long and as wide as 30 feet. The proposed depth of the channel is 2.0 feet MSL and slide slopes would be 5:1. The spoil would be pumped to a dike holding area on adjacent uplands. The Respondent's Exhibit No. 1, which is the permit application, offers a sketch of the boat basin with secondary sedimentation feature and the attendant access canal and channel. The project lies between U.S. Highway 17 and Crescent Lake, Areas to the south and west of the site are pasture and bayhead wetlands and they serve as a watershed for the aforementioned intermittent stream. Other upland areas in the vicinity are dominated by fully-drained flat woods and well-drained sand hill and messic oak terrain. The project site waterward of the mean high water is part of a shallow littoral zone of the west shore of Cresent Lake. The intermittent stream receives the runoff from the pastureland and drainage from U.S. Highway 17. There is a pronounced change in elevation during the course of the intermittent stream. The submerged littoral zone of the lake, which includes the proposed site of the access canal, falls away at a gentle slope and includes a number of supporting hardwoods, predominantly bald cypress. The area also includes submerged emergent vegetation, which is found in the shallows offshore. These shallows are exposed to favorable sunlight from the point of view of the health of this vegetation. The vegetation includes an emergent bed of oft stem bulrush (Sicrpus validus) which is in line with the proposed channel. Within the photic zone there is submerged tape grass (Valisneria americana) and naiad (Najas sp.). On the shore of Crescent Lake at the project site is found a hardwood swamp in its natural form, together with a creekbed which divides into numerous channels fanning out in the direction of the lake itself. This area of the creekbed contains bald cypress (Taxodium distichum), red maple (Acer rubrum), swamp ash (Fraxinus panciflora), black willow (Salix nigra), black gum (Nyssa biflra), water hickory (Carya aquatica), and wax myrtle (Myrica cerifera). The herbs and ferns in this area include penny wort (Hydrocotyl umbellata), arrow- arum (Peltandra virginica), leather fern (Acrostichum danaeifolium), and royal fern (Osmunda regalis). The sediments found in the creek area are sandy to silty sand. In the area where the boat basin/sedimentation facility would be located, the present intermittent stream is much more confined than in the area of the creekbed. Only in times of heavy rainfall does the water come outside the banks of the intermittent stream and inundate the surrounding territory. This portion of the stream is densely vegetated by a mixture of hydrophytes, facultative hydrophytes, an optimally situated upland species. These include sweet bay (Magnolia virginiana), black gum (Nyssa biflora), and red maple (Acer rubrum). Additionally, there are slash pine (Pinus elliotii), long leaf pine (Pinus palustris), dahoon (Ilex cassine), wax myrtle (Myrica cerifera), water oak (Quercus nigra), wild azalea (Ericaceae), and saw palmetto (Serenoa repens). The sedminets in this area range from very sandy in the slightly higher elevations adjacent to the stream bed to a heavy peat which is found predominantly in the bay tree locations. The uplands in the agricultural area are dominated by water oak, slash pine, long leaf pine, live oak and saw palmetto. A more graphic depiction of the project site and in particular as it relates to the intermittent stream, shore line upland agricultural area, and U.S. Highway 17 may be found in the Petitioner's Exhibits 1 and 2 and the Respondent's Exhibits 2 through 15, which are photographs of the project site. There are numerous varieties of fish in the area of Crescent Lake through which the access channel would be routed. These include: Seminole killifish (Fundulus seminolis), naked goby (Gobiosoma bosci), black bullhead (Ictalurus melas), brook silversides (Labidesthes sicculus), sunfish (Lepomis sp.), large-mouth bass (Micropterus salmoides) and Atlantic needlefish (Strongylura marina) . In addition, there are 35 species of invertebrates which were collected in the studies made by employees of the Respondent in their assessment of this permit application. The names of those invertebrates may be found in the Respondent's Exhibit No. 19 which was admitted into evidence in the course of the hearing. The vegetation and shallow water with a sandy bottom, together with the numbers and species of macro invertebrates, small fishes and immature game fishes point to the fact that this part of the lake serves as a valuable site for the propagation of fish, otherwise referred to as a spawning ground. The water quality in Crescent Lake at the site of the project is good, from the standpoint of gross observations. However, there have been some indications of eutrophication in Cresent Lake. A more complete understanding of the water quality may be gained from an examination of the Respondent's Exhibits 21 through 41 admitted into evidence. These exhibits are constituted of certain water quality reports rendered after extensive testing in Crescent Lake. The rainfall in the area exceeds 54 inches a year, with 50 percent of that rainfall being recorded in the wettest quarter, in which over 7 inches a month would fall. July has recorded 15 inches as a mean measurement over the last 80 years, with the month of May showing less than 2 inches, the month of September showing less than 2 inches and the month of October less than 1 inch. In considering the proposed project, a beginning point would be an examination of the ability of the primary filtration pond and secondary filtration function found in the boat basin, to adequately disperse the pollutants which will come into the system from the agricultural area and U.S. Highway 17. That treatment system is inadequate. The inadequacy exists because in periods of low rainfall the pollutants will settle to the bottom of the siltation system and will not be dispersed evenly. This cycle of low rainfall when followed by heavy rainfall, such as occurs in July, will cause the pollutants to be rapidly discharged from the system into the basin of the lake, either in a dissolved form or a free form, causing an unreasonable dilatorious effect to water quality and creating possible turbidity. The confined nature of the proposed channel which empties into the lake will promote scouring because the water is coming out in a more confined area than the natural access allows at present. In addition, the flow velocity in the secondary siltation system is not strong enough to flush out the pollutants in an efficient manner. Finally, channelization promoted by the system would remove a certain percentage of the biological treatment that occurs in the natural intermittent stream, thereby introducing a greater quantity of pollutants into the lake and reducing oxidation that this biological treatment and natural course of the intermittent stream bed now provides. The project, as contemplated, is very similar in its nature to the canal system in Dunns Creek, a body of water adjacent to Crescent Lake. A study conducted on that canal system revealed a very poor quality of dissolved oxygen, which falls below the water quality standards for Class III waters. (A copy of this report may be found as Respondent's Exhibit No. 20 admitted into evidence.) These are the same standards that would apply to Crescent Lake. In addition, there is a lack of flushing and the development of aquatic weeds deterimental to the fish and invertebrates located in the area of the Dunns Creek canals. Therefore, a similar problem could be expected in the project now under consideration. If the project were completed, the excavation of the material would cause disruption of the sediment and water quality degradation if precipitation occurred during the excavation. Efforts at turbidity control would not protect against a heavy rain and the maturely vegetated stream bed and productive littoral vegetation and substrates would be lost. The long term effects of the project would cause degradation of the water quality and a loss of fish and wildlife resources in the impact area. The filtrative assimilative capacity provided by the algae, shrubs, trees and associated substrates involved in the process of absorption and in aerobic bacterial metabolism, would be eliminated by the project and replaced by an intermittently flushed, highly nutrified shallow water lagoon and canal. Pollutants associated with boat operations would further compound the water quality problems and perpetual sediment disruption would occur because of a natural result of shallow water maintenance and use of the system. Siltation and periodic discharge of degraded basin water into the littoral zone of the lake would adversely effect the productive potential and the habitat potential offered by this area in its present form. Based upon a full assessment of the project, it is established that there would be increased and harmful erosion, shoaling of the channel and the creation of stagnant areas of water. It would also cause an interference with the conservation of fish, marine and wildlife to an extent that is contrary to the public interest. It would promote the destruction of natural marine habitats, grass flats suitable as nurseries or feeding grounds for marine life and established marine soils suitable for producing plant growth of a type useful as a nursery or feeding ground for marine life or natural shoreline processes to an extent contrary to the public interests. These failings are in direct contravention of Chapter 253, Florida Statutes. The project would be contrary to State Water Quality Standards, as developed pursuant to authority of Chapter 403, Florida Statutes. Thus, the Petitioner has failed to give reasonable assurances that the immediate and long term impacts of the project would not result in a violation of the State Water Quality Standards, as required by Rule 17-4.28(3), Florida Administrative Code.
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2004-026 on August 24, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan was adopted on August 31, 1989, and became effective on September 11, 1989. In 2000, the County amended its Plan by establishing a Managed Growth Tier System, which includes five classifications of land (Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and Glades), along with three classes of service areas within the County to guide delivery of public services: Urban Area, Limited Urban Service Area, and Rural Service Area (RSA). It also assigned different levels of service for potable water and wastewater for each service area. At the same time, the County amended its FLUE to add a new Policy 3.4-c, which provides as follows: The County shall neither provide nor subsidize the provision of centralized potable water or sanitary sewer in the Rural Service Area, unless urban levels of service are required to correct an existing problem, prevent a projected public health hazard or prevent significant environmental degradation, or the areas meet the criteria described in Future Land Use Policy 3.4.b. The County intended Policy 3.4-c to implement the Managed Growth Tier System by limiting the provision of centralized utility service in the Rural Tier. The effect of this new policy was to prohibit the County from providing urban levels of utility services outside its existing service area boundaries in the RSA unless necessary to correct or prevent a public health hazard, existing problem related to urban levels of service, or environmental degradation. In February or March 2003, the County Planning Department began assessing ways to address the problem of overlapping utility service in the RSA. Shortly thereafter, the Florida Legislature passed the Scripps Law (Chapter 2003- 420, Laws of Florida), which took effect on November 3, 2003. Both of these factors led to the development of the Amendments in issue here. In late 2003, the County staff began the actual development of new amendments to its Plan (also known as Round 04-1 Plan Amendments) that would allow the County to provide services into the RSA. More specifically, the staff proposed to add a new FLUE Policy 3.1, which (as finally drafted) read as follows: The Palm Beach County Water Utilities Department shall provide potable water, reclaimed water and wastewater service to all unincorporated areas of the County except those unincorporated areas where the Palm Beach County Board of County Commissioners has entered or enters into a written agreement that provides utility service area rights to a public or privately owned potable water, reclaimed water, and/or wastewater utility, or in areas where the Palm Beach County Water Utilities Department is specifically excluded from providing utility service by Florida law. Palm Beach County Water Utilities Department shall continue to provide utility services to incorporated areas where service is already being provided by the County, or as provided for under utility service area agreements or as allowed for by law. In general terms, the new policy designated the County as a service provider of water and wastewater services for unincorporated areas of the County where the County has, or will enter into, interlocal agreements except where excluded by interlocal agreement or by law. The effect of the amendment is to allow the County to extend potable water and wastewater services to unincorporated areas of the County, particularly "the western communities," where it currently does not do so. The County staff also proposed to delete FLUE Policy 3.4-c, described in Finding of Fact 1, which was previously adopted in 2000. Finally, the County staff proposed to delete another policy adopted in 2000, CAI Policy 1.5-c, which read as follows: Urban levels of service shall not be provided by any governmental entity (outside of its existing service area boundary) within the Rural Service Area of the unincorporated area, except where: The Rural Service Area receives urban services pursuant to Objective 1.1 in the Element, or An urban level of service is required to correct a demonstrated public health, or Development on a parcel in the Rural Tier that is adjacent to water and/or sewer lines which existed prior to the adoption of the Comprehensive Plan in 1989 shall be allowed to connect to those existing lines and shall be allowed to connect to public sewer and/or water when required by the Public Health Department. This policy shall not allow the extension of new water and/or sewer lines into the Rural Tier to serve development without first amending the Service Area Map and the Future Land Use Atlas to reflect a change in the service area boundary. By deleting these two provisions, the County would no longer be prevented from providing utility services in the RSA unless certain conditions were met. (The staff also proposed to delete FLUE Policy 1.4-k, but that deletion is not in issue in these proceedings.) On January 14, 2004, the County initiated the adoption process by transmitting Notice of the Amendments to the Intergovernmental Plan and Amendment Review Committee (IPARC), which is made up of all the local governments and special districts in the County, including the City, Wellington, SID, and ITID. IPARC acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC in turn distributed the notice to its members, including the City, Wellington, SID, and ITID. After a public hearing on March 12, 2004, before the County's Local Planning Agency (known as the Land Use Advisory Board), by an 11-0 vote it recommended denial of Round 04-1 Plan Amendments and recommended that the County meet with the affected parties to resolve problems voiced by various attendees, including the City, SID, and ITID. On April 2, 2004, the County held a meeting with interested persons in an attempt to resolve objections to the Amendments before they were presented to the Board of County Commissioners. The objections were not resolved. On April 5, 2004, by a 5-0 vote, the Board of County Commissioners approved transmittal of the Amendments to the Department, other commenting agencies, and each unit of local government or governmental agency that had filed a written request for copies of the Amendments. The Amendments were transmitted to the Department on April 15, 2004. Between January 2004 and August 2004, the County held at least 37 meetings with utilities and other interested persons to discuss the Amendments, including three meetings with the City, at least five meetings with SID, at least ten meetings with ITID, and at least two meetings with Wellington. In addition, the County invited all utilities to attend meetings on April 28, 2004, at three locations to discuss utility service area boundaries. These meetings were attended by approximately 25 different utilities, including the City, SID, ITID, and Wellington. As a result of these meetings, the County prepared and distributed utility service area maps in an attempt to demonstrate the necessity for better coordination between utilities. On May 21, 2004, the Treasure Coast Regional Planning Council notified the County of no objection or comments regarding the Amendments. On June 19, 2004, the Department issued its Objections, Recommendations, and Comments Report, which did not identify any objections, recommendations, or comments with respect to the Amendments. On June 22, 2004, the South Florida Water Management District (District) notified the Department of no objections or comments regarding the Amendments. After a public meeting on August 24, 2004, by a 5-1 vote, the Board of County Commissioners adopted Ordinance No. 2004-26 enacting the Amendments, and they were transmitted to the Department on September 14, 2004. On October 29, 2004, the Department issued its Notice determining the Amendments were in compliance. On November 19, 2004, Petitioners (except Wellington) filed Petitions challenging the Amendments. Wellington filed its Amended Petition on December 16, 2004. The Parties and Their Standing The City is a municipality and adjoining local government of the County, operating its own water and wastewater utility system. The City owns the largest water treatment plant in the County and has an extensive wastewater treatment system, including partial ownership in the East Central Regional Water Reclamation Facilty, the largest wastewater plant in the County. It owns property and currently provides bulk service to entities located within the unincorporated area of the County, including ITID. It submitted written objections to the County during the adoption process and has standing to bring this action. SID is an independent special district created by special act of the legislature in 1970. It lies within the unincorporated area of the County and has the authority to provide water and wastewater service within and without its boundaries. At present, SID provides potable water service within and without its boundaries, but only provides wastewater service within its boundaries. SID owns property in the unincorporated area and submitted objections to the County during the adoption process. These facts establish that SID has standing as an affected person to challenge the Amendments. Callery-Judge is a limited partnership, which owns and operates citrus groves on property located within the unincorporated area. It also submitted objections to the County during the adoption process. Callery-Judge is an affected person and has standing to participate in this matter. Mr. Roberts owns property in the unincorporated area, including Callery-Judge, of which he is the General Manager. He submitted objections to the Amendments during the adoption process and is an affected person. ITID is an independent special district created by special act of the legislature in 1957. (In 2002, the Legislature amended and reenacted ITID's enabling legislation.) In 1998, ITID began operating a water and wastewater system within the unincorporated area. ITID does not generate its own potable water or treat its wastewater. It obtains bulk water from the City and SID and bulk wastewater service from the City. ITID owns property within the unincorporated area and submitted objections to the amendment during the adoption process. As such, it is an affected person within the meaning of the law. Wellington is a municipality and adjoining local government of the County and operates a utility providing water and wastewater service within its boundaries and outside to several developments. It also submitted objections to the County during the adoption of the Amendments. Because Wellington does not own property or operate a business within the unincorporated area of the County, in order to demonstrate standing, it must show that the Amendments will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within its jurisdiction. See § 163.3184(1)(a), Fla. Stat. Wellington bases its standing on alleged increases in traffic and the use of parks within its boundaries, which purportedly will occur as a result of the Amendments. While Wellington could not give a precise amount (in terms of dollars) of those impacts, the testimony of its Director of Community Services established that the availability of centralized water and sewer services in the areas adjoining Wellington will arguably lead to higher density development patterns, which in turn will lead to an increased need for publicly funded infrastructure. As such, Wellington is an affected person and has standing to challenge the Amendments. The Department is the state planning agency charged with responsibility for reviewing and approving comprehensive plans and amendments. The County is a political subdivision of the State of Florida and is responsible for adopting a comprehensive plan and amendments thereto, including the Amendments. The County Water Utilities Department currently serves approximately 425,000 people, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. The Current Plan As noted above, the County initially adopted its current Plan on August 31, 1989, by Ordinance No. 89-17. The Plan has been amended numerous times since its initial adoption. The original 1989 Plan and all subsequent amendments up to the ones at issue in this proceeding have been found in compliance by the Department. The current Plan is made up of sixteen elements, nine of which are mandatory, and seven of which are optional. The parties have indicated that the Utilities Element, CIE, Intergovernmental Coordination Element, and FLUE are relevant to this controversy; therefore, a brief description of their content and purpose is necessary. The purpose of a Utilities Element is to provide necessary public facilities and services correlated to future land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin. Code R. 9J-5.011. The existing Utilities Element contains potable water, wastewater, drainage, and solid waste sub- elements. The aquifer recharge sub-element is found in the Coastal Management Element. The Utilities Element and the aquifer recharge sub-element of the Coastal Management Element constitute the "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element" referenced in Section 163.3177(6)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.011. The existing Utilities Element has been found in compliance with applicable provisions of statute and rule. Section 163.3177(3)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.016 contain requirements for the capital improvements element of a comprehensive plan. The existing CIE complies with these requirements. Objective 1.7 and Policy 1.7-a describe how the County implements the CIE. Pursuant to these requirements, the CIE is updated annually at the same time as the County budget. Table 10 of the CIE reflects the water utilities revenue and expenditures for the then current budget year and five years into the future. Table 10 was not updated when the Amendments were adopted because any future changes to the County's capital expenditures resulting from the Amendments would be made through the annual budget update process. The Intergovernmental Coordination Element contains provisions encouraging coordination between the County and adjoining municipalities and special districts in order to more efficiently meet the needs of the County residents. (There are more than 25 municipalities and special districts within the County.) This Element has previously been found in compliance with Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015. One of the coordination tools identified in the Intergovernmental Coordination Element is the IPARC, described in Finding of Fact 5, which acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC distributes notice of plan amendments to all members, who then have the opportunity to provide comments regarding the proposed action. Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.006 contain requirements for the future land use element of a comprehensive plan, including the future land use map (FLUM). According to the Plan, the FLUE "is the nucleus of the . . . Plan" and "defines the components of the community and the interrelationship among them, integrating the complex relationships between land use and all of the other elements of the Plan that address the physical, social, and economic needs of the people who live, work, and visit Palm Beach County." Both the existing FLUE and the current FLUM have been found in compliance. The Amendments do not alter the FLUM, but they do change FLUE Policy 3.1-c and delete FLUE Policy 3.4-c. As noted above, in 2000 the County adopted a Managed Growth Tier System, which is a planning tool intended to manage growth and protect varying lifestyles in the County. The Managed Growth Tier System consists of five categories or tiers, which are described in Objective 1.1 of the Plan. Objectives 1.2 through 1.6 govern development within the five tiers. FLUE Table 2.1-1 establishes permitted densities for each of the tiers. The Amendments do not modify any Goals, Objectives, or Policies governing the five tiers, with the exception of FLUE Policy 1.4-k. However, Petitioners have not challenged the proposed deletion of FLUE Policy 1.4-k and it is not one of the Amendments at issue in this proceeding. Additionally, the Amendments will not alter the permitted densities for any of the tiers. Concurrency Management refers to the system adopted in the CIE to ensure that infrastructure, which meets or exceeds the established minimum level of service standards, is in place concurrent with development approval. According to FLUE Policy 3.5-a, development orders and permits shall not be approved unless services and facilities meet or exceed the minimum levels of service. FLUE Objective 3.1 establishes three graduated service areas in Palm Beach County -- the Urban, Limited Urban Service, and Rural Service Areas. Each service area corresponds to one or more of the five tiers. The minimum levels of service required for each area are listed in FLUE Table 3.1-1. According to FLUE Table 3.1-1, FLUE Policy 3.5-a, and Utilities Element Policies 1.2-g and 1.3-e, the minimum levels of service in the RSA for potable water and sewage are on-site wells and septic tanks, respectively. With the exception of water and sewer, the other minimum levels of service are the same for all three service areas. The Amendments do not alter the minimum levels of service for any service area. Through its planning expert, Wellington contended that the Amendments will cause a de facto change to the minimum levels of service. However, the extension of centralized water and sewer service into the RSA does not change the established minimum levels of service. Petitioners also argue that the Amendments will increase minimum levels of service in the RSA for traffic and parks. However, the minimum levels established in FLUE Table 3.1-1 for all services and facilities, other than potable water and sanitary service, are County-wide standards. Reasons for Adopting the Plan Amendments Policy 3.4-c did not have its intended effect because it prevented the County from providing service to the Rural Tier. After 2000, repeated efforts by the County to negotiate the service areas of the numerous entities operating utility services in the unincorporated area were unsuccessful. Indeed, "there was not a willingness of many utility providers to agree on anything." This created a lack of coordination and planning as to the provision of services in the Rural Tier. The City, SID, and ITID each have utility service areas which overlap the service area of other utility providers. In particular, portions of the Acreage, a community located in the central-western unincorporated area of the County, fall under the claimed utility jurisdiction of SID, ITID, Cypress Grove Community Development District, and the Village of Royal Palm Beach (Royal Palm Beach). The City is also rapidly expanding service in the unincorporated area by entering into bulk water service agreements with a number of utilities located in the Rural Tier, including Royal Palm Beach, Seacoast Utilities Authority, and ITID. The City intends further expansion of bulk service in the Rural Tier, so as to increase utility revenues. It views the Amendments as affecting its substantial interests by potentially limiting these revenues. Royal Palm Beach claims an exclusive utility service area which overlaps the utility service areas claimed by SID and ITID. Royal Palm Beach is located entirely within the legislative boundaries of ITID and claims all of ITID as its service area. The Amendments support the authority granted to the County by the Scripps Law. That law gives the County the exclusive right to provide water and wastewater service to the Scripps Biomedical Research Facility and to construct utility facilities within and without the boundaries of the Scripps project. The enactment of the Scripps Law reinforced the need for the Amendments, as the Scripps Biomedical Research Facility will be located in the unincorporated area. Existing FLUE Policy 3.4-c is arguably inconsistent with the Scripps Law because it prevents the County from providing utility service in the RSA. Since the Scripps Law supersedes all other contrary provisions of Florida Law, it logically follows that FLUE Policy 3.4-c should be repealed. The Amendments are also supported by the provisions of the County Code of Ordinances Sections 27-16 through 27-22, which codify County ordinances that were adopted in the 1970s and deal with utility service. These ordinances authorize the County to designate a Control Area in the unincorporated area and to require County approval of any water and wastewater facilities constructed in these areas. In summary, the County adopted the Amendments to avoid service area disputes between utility providers such as those described above, to prevent wasteful and duplicative utility services, to implement the Legislature’s mandate regarding the Scripps Biotechnology Park, to ensure a sufficient water supply to meet the reasonable development needs of the unincorporated area, and to enforce the provisions of the County Code of Ordinances. Petitioners' Objections Data and analysis Petitioners contend that the only data and analyses submitted by the County to support the Amendments are contained in a rather brief County Staff Report (Petitioners' Exhibit 5), and that no other documentation was actually forwarded to the Department. They further contend that the Amendments must be based on demographic, economic, and fiscal studies, and that none were utilized by the County. Because of these omissions, they argue that the Amendments violate relevant statute and rule provisions and are not in compliance. Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2) require that plan amendments be based on relevant and appropriate data and analyses applicable to each element. In determining whether a plan amendment complies with this requirement, the Department reviews each amendment on a case-by-case basis. In doing so, it does not require the same amount or type of data for all plan amendments. See, e.g., Zemel et al. v. Lee County et al., DOAH Case No. 90-7793 (DOAH Dec. 16, 1992, DCA June 22, 1993)(projections of aquifer thickness and transmissivity do not require the same precision as calculating volume-to- capacity ratios for levels of service on road segments); 1000 Friends of Florida et al. v. Department of Community Affairs et al., DOAH Case No. 04-4492GM, 2005 WL 995004 at *15 (DOAH April 28, 2005, DCA May 9, 2005)("a numeric analysis is not necessary to justify industrial uses since they may be goal- based and aspirational"). For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (i.e., further analyses and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments. See Collier County v. City of Naples et al., DOAH Case No. 04-1048GM, 2004 WL 1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)). Conversely, amendments which are mandatory in nature, that is, amendments which are required to be implemented by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5, require more data and analyses. Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy- based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County's long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required. Here, the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility customers in the RSA switch to the County. The Amendments do not authorize any new development in the Rural Tier, and any future development would have to be approved by the Board of County Commissioners through the normal development approval process. Therefore, the Amendments are akin to an aspirational amendment and do not require the degree of data and analyses that are required for other amendments. The County Staff Report identifies, albeit in brief fashion, data and analyses in support of the Amendments. It provides, among other things, that the Amendments are necessary because "[t]he lack of County participation as a service provider has created a void in effective long-term utility planning, resulting in duplicative service lines, inefficient services in the RSA, overlapping utility jurisdictions and, absence of some written agreements defining service areas." The Staff Report further identifies the County’s authority to provide service and the necessity for the Amendments to allow the County to provide service to the Biotechnology Research Park in northwest Palm Beach County. In addition, a number of documents presented at hearing provide data and analyses in support of the Amendments. In considering these documents, the undersigned notes that all data or analysis available and existing at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding and may be raised or discussed for the first time at the administrative hearing. Zemel, supra; McSherry et al. v. Alachua County et al., DOAH Case No. 02-2676GM, 2004 WL 2368828 at *54 (DOAH Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin County et al., DOAH Case Nos. 02-1014GM and 02-1015GM, 2003 WL 2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct. 24, 2003). The District's Districtwide Water Supply Assessment identifies future potable water demands for various utilities in the County. The District's Lower East Coast Regional Water Supply Plan describes the available raw water supply to meet future demands in the County. The District's CUP-CERP (Consumptive Use Permit-Comprehensive Everglades Restoration Plan) Guiding Principles lists interim water use permitting guidelines, which indicate utilities may experience problems obtaining permitted allocations beyond what is needed to meet their 2005 demands. District Water Use Permit 50- 00135-W is the County's 20-year water use permit, which confirms that the County is the only utility in the unincorporated area with a guaranteed, long-term potable water allocation. The information contained in these documents confirms the County's ability to act as the default water utility provider in the unincorporated area. The County Linking Land Use and Water Supply Plan, Water and Wastewater Master Plan, Reclaimed Water Master Plan, Raw Water Master Plan, 20-Year Wastewater Collection System Master Plan, and Projected Yearly Capital Expenditures each provide data and analysis, which support the County's ability to serve as the default utility provider in the unincorporated area. As a water management district study, the District's documents are professionally accepted sources, which constitute appropriate data and analyses under Florida Administrative Code Rule 9J-5.005(2)(c). Similarly, the County's reports constitute existing technical studies, which are also appropriate data and analysis. Petitioners contend that the County was required to collect new data and prepare a comparative analysis of the County Water Utilities Department and other utility providers in the unincorporated area. However, according to Florida Administrative Code Rule 9J-5.005(2)(b), local governments are not required to collect new data in support of a plan amendment. Further, neither Florida Administrative Code Rule 9J-5.005(2) nor Section 163.3177, Florida Statutes, requires a comparative analysis. It is at least fairly debatable that the Amendments are supported by relevant and adequate data and analyses. Intergovernmental Coordination Petitioners also contend that in order to comply with the Intergovernmental Coordination Element of the Plan, the County must inventory and analyze the facilities and services provided by other utility providers in the areas affected by the Amendments. In other words, they contend that without data and analysis relative to other providers, the coordination function is incapable of being done and is meaningless and renders the Amendments inconsistent with Florida Administrative Code Rule 9J-5.015. (That rule sets forth in detail the data requirements upon which the element in a local government's comprehensive plan must be based, and the goal statements, specific objectives, and policies which must be found in the element.) Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 set forth requirements for the intergovernmental coordination element of a comprehensive plan. The existing Intergovernmental Coordination Element has been found to be in compliance. The Amendments do not modify this element. Although not required for purposes of compliance, the County followed intergovernmental coordination procedures in the comprehensive plan when adopting the Amendments. The Amendments were submitted to IPARC for review by member governments prior to their consideration by the Board of County Commissioners. The County met with other utility providers and interested persons no less than 37 times to discuss the Amendments. Further, Petitioners' own witnesses concede that their representatives attended multiple meetings with the County regarding the Amendments. Such efforts demonstrate that the County substantively complied with the Intergovernmental Coordination Element. Petitioners' contention that these meetings were not conducted in good faith has been rejected. Petitioners implicitly suggest that intergovernmental coordination means acquiescing to the position of an objector. If this were true, adjacent local governments would have veto power over the County's ability to enact plan amendments, a result not contemplated by the statute. The intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 do not require that local governments resolve all disputes regarding a comprehensive plan and its amendments to the satisfaction of all interested persons, but only that the local government take into consideration input from interested persons. See, e.g., Department of Community Affairs et al. v. Lee County et al., DOAH Case Nos. 89-1843GM and 90-7792GM, 1990 WL 749359 (DOAH Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous meetings held by the County demonstrate adequate consideration of opposing views. It is at least fairly debatable that the County satisfied the intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes. Economic Feasibility/Comparative Analysis Petitioners argue that the Amendments fail to comply with Section 163.3177(2), Florida Statutes, which requires that "the comprehensive plan shall be economically feasible." Petitioners claim that in order to establish economic feasibility, the County first should have conducted a comparative economic analysis of the cost of utility service in the unincorporated area by various existing and hypothetical service providers. However, this construction of the statute is at odds with the Department's interpretation. The Department does not interpret the economic feasibility requirement of Section 163.3177(2), Florida Statutes, as requiring such a comparison. Instead, it construes the statute as only requiring that a plan amendment be realizable in financial terms, that is, that the local government has the financial ability to achieve what is specified in the amendment. See Resolution Trust Corp. v. Department of Community Affairs et al., DOAH Case No. 94- 5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm. Sept. 4, 1998)("Economic feasibility means plans should be realizable in financial terms."). Compare Southwest Fla. Water Mgmt. District et al. v. Charlotte County et al., 774 So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court interpreted the use of the term "economically feasible" in a proposed Basis of Review provision as meaning "financially feasible or financially 'doable' . . . [and the] financial ability of a WUP applicant to institute reuse." The Department's interpretation of the statute was not shown to be unreasonable or clearly erroneous. The evidence shows that the Amendments are financially realizable. The County Water Utilities Department is one of the financially strongest utilities in the nation. It has the highest municipal bond rating (AAA) granted by the three major rating agencies. As of August 24, 2004, no other utility in the State of Florida had achieved an AAA rating from the three bond rating agencies, and the County Water Utilities Department is among only a handful of utilities nationwide to have achieved that status. Petitioners have acknowledged that the County is a very strong utility from a financial perspective. Given the County's strong financial state, it is qualified and able to serve as the default provider in the unincorporated area. In summary, it is fairly debatable that the Amendments are economically feasible as the term is used in Section 163.3177(2), Florida Statutes, because the County has the financial ability to extend utility service to the unincorporated area. Urban sprawl Wellington (but not the other Petitioners) essentially contends that the Amendments will promote urban sprawl because the County will now allow new urban services (water and wastewater) into undeveloped areas thereby resulting in urban development. Florida Administrative Code Rule 9J-5.006(5) contains standards discouraging the proliferation of urban sprawl. Existing provisions in the Plan, including the Managed Growth Tier System, prevent urban sprawl within the County. Florida Administrative Code Rule 9J-5.006(5)(k) provides in part that "if a local government has in place a comprehensive plan found in compliance, the Department shall not find that plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." The Amendments do not affect existing growth management provisions in the Plan and thus will not exacerbate urban sprawl. Although not required, the amendment of FLUE Policy 1.4-k, which Petitioners did not challenge, will also have the effect of maintaining the status quo with respect to urban sprawl. At the same time, the Amendments do not directly or indirectly authorize new development and are only aspirational in nature. Any extension of water and sewer lines into the unincorporated area does not necessarily create urban sprawl because development is not automatically authorized by these activities. Even Wellington's planning expert concurred that urban sprawl is not caused by the provision of utility services, but by the Board of County Commissioners' approval of development orders. It is at least fairly debatable that the Amendments will not encourage urban sprawl in contravention of the Plan.2 Internal consistency Petitioners next contend that the Amendments fail to comply with Sections 163.3177(2), 163.3177(10)(a), and 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), which require that all elements of a comprehensive plan be consistent with each other. In addressing this objection, only those inconsistencies expressly alleged in their Petitions and Amended Petition will be considered. See, e.g., Heartland Environmental Council v. Department of Community Affairs et al., DOAH Case No. 94- 2095GM, 1996 WL 1059751 at *19 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996). Future Land Use Element Petitioners first contend that the Amendments are inconsistent with Goal 3, Objective 3.1, and Policies 3.1-a and 3.1-b of the FLUE. These provisions require that the County "define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner"; that the County establish graduated service areas "to distinguish the levels and types of services needed within a Tier, consistent with the characteristics of the Tier," which include "the need to provide cost effective services"; that the County establish Urban, Limited Urban Service, and Rural Service Areas based on several factors in Table 3.1.1, including "[t]he cost and feasibility of extending services"; and that the County review minimum levels of service "during preparation of the Evaluation and Appraisal Report [EAR] and the Comprehensive Plan as amended." The latter provision also requires that each service provider determine the maximum and available capacity of their facilities and services for this review. The first broad goal is implemented through the County's existing Managed Growth Tier System and is not affected by the identity of the utility provider. Also, the Amendments do not alter the Managed Growth Tier System, nor do they alter the existing minimum levels of service required for the RSA. Similarly, FLUE Objective 3.1 is not affected, as the Amendments only have the potential to change the utility provider in certain areas, and not the level of service provided within the RSA. Further, the Amendments do not change the existing service area boundaries and established service area definitions. As to Policy 3.1-a, the service areas have been established and found in compliance and the Amendments do not alter the service area designations or Table 3.1-1. Therefore, they are not inconsistent with Policy 3.1-a. Finally, Policy 3.1-b is not affected by the Amendments because the minimum levels of service are not altered and the Amendments are not the product of an EAR. Capital Improvements Element – Table 10 Table 10 of the CIE describes water and sewer revenues, operating revenues, federal/state grants, other revenues, bond/ loan proceeds, fund balances, total water and sewer revenues, water and sewer operating expenditures, water and sewer capital projects, annual surplus/deficit, and cumulative surplus/deficit for fiscal years 2004-2009. Petitioners contend that the Amendments are inconsistent with this provision because the Table has not been amended to reflect the expenditures that will be made by the County as a result of the Amendments. This Table is not affected because the Amendments do not require any changes to the County's capital expenditures. If changes do occur as a result of the County's planned extension of utility service into the unincorporated area, the capital improvements associated with extension of service will be addressed in subsequent annual updates of Table 10. Intergovernmental Coordination Element Petitioners contend that the Amendments are inconsistent with Goal 1 and Objective 1.1 of the Intergovernmental Coordination Element, which require the County to "provide a continuous coordination effort with all affected governmental entities" and to "utilize existing mechanisms to coordinate planning efforts with the plans of school boards, other units of local government providing services, adjacent municipalities, adjacent counties, the region, the State, and residents of Palm Beach County." Petitioners essentially claim that the Amendments were adopted and transmitted without coordination with other local governments, as required by the goal and policy. As explained above, the evidence shows that the Amendments were submitted to IPARC for review by each of the local governments and special districts located in the County, these entities were given ample opportunity to comment or object to the Amendments, and the County utilized existing mechanisms to coordinate planning efforts. Therefore, the Amendments are consistent with these portions of the Intergovernmental Coordination Element. Petitioners also contend that the Amendments conflict with Goal 4, Policy 4.1-a, and Policy 4.1-b of the Intergovernmental Coordination Element. The broad goal relates to coordination of "service provision to assure the most effective and efficient service delivery for the residents of Palm Beach County and its municipalities," while the two policies require that the County coordinate with special taxing districts and each municipality within the County during "the concurrency management and development review processes" and in defining the "ultimate boundaries of that entity's sewer and water service areas." The Amendments are consistent with the goal because their purpose is to create more effective and efficient service delivery by encouraging utility providers to enter into agreements which establish exclusive service areas and eliminate overlapping service areas. For similar reasons, the Amendments are consistent with Policy 4.1-a because the County coordinated with each of the special taxing districts through IPARC and numerous subsequent meetings relating to the Amendments. Finally, the main purpose of the Amendments is to prevent overlapping utility service areas and to encourage utility providers to enter into agreements defining service areas. Therefore, they are not inconsistent with Policy 4.1- b. Treasure Coast Regional Planning Council Plan Petitioners next allege that the Amendments are inconsistent with Goal 8.1, Regional Strategy 8.1.1, and Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast Regional Planning Council's Regional Policy Plan (Regional Policy Plan). In order for a plan amendment to be consistent with a regional policy plan, Section 163.3177(10)(a), Florida Statutes, requires that plan amendments be consistent with the regional plan "as a whole," and that no specific goal or policy be "applied in isolation from the other goals and policies in the plans." Because the Petitions and Amended Petition do not allege that the Amendments are inconsistent with the Regional Policy Plan as a whole, their challenge must necessarily fail. See, e.g., 1000 Friends of Florida, Inc., supra at *38. Even if a provision in the Regional Policy Plan could be viewed in isolation, the Amendments are consistent with Regional Goal Regional Goal 8.1, which requires "public facilities which provide a high quality of life." Nothing in the Amendments would impair the provision of a high quality of life. One of the purposes of the Amendment is to more efficiently provide utility service by defining service areas and improving the provision of services. Regional Strategy 8.1.1 relates to the provision of "levels of public service necessary to achieve a high quality of life cost-effectively." The Amendments are not inconsistent with this strategy, as they are designed to help the County implement the existing objectives and policies relating to this strategy. The purpose of Regional Policy 8.1.1.3 is to "encourage patterns of development which minimize the public cost of providing service, maximize use of existing service systems and facilities and take into full consideration environmental/ physical limitations." As stated above, one purpose of the Amendments is to provide more efficient and cost-effective utility service by encouraging providers to enter into agreements that prevent overlapping service areas and avoid duplication of services. Finally, the purpose of Regional Policy 8.1.1.4 is to "develop local Capital Improvement Programs which maximize development of existing systems before allocating funds to support new public facilities in undeveloped areas." Because the Amendments do not alter the County's Capital Improvement Programs, they do not implicate this policy. State Comprehensive Plan Petitioners further allege that the Amendments are inconsistent with two goals in the state comprehensive plan, which are codified in Section 187.201, Florida Statutes. Like regional policy plans, Section 163.3177(10)(a), Florida Statutes, provides that for purposes of determining consistency, the state plan is to be construed as a whole, with no specific goal or policy applied in isolation from the other goals and policies. If a plan appears to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. Petitioners have not alleged that the Amendments are inconsistent with the state comprehensive plan as a whole. Therefore, their challenge to the Amendments must necessarily fail. See 1000 Friends of Florida, Inc., supra; Heartland Environmental Council, supra. Assuming that a provision within the state comprehensive plan can be viewed alone, Section 187.201(17)(a), Florida Statutes, provides that "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Petitioners contend that because the Amendments fail to protect the public facilities that already exist in the unincorporated area of the County, the Amendments conflict with this goal. The Amendments are not inconsistent with this goal because their purpose is to implement the Plan provisions in a timely, orderly, and efficient manner. Further, the Amendments are consistent with the specific provisions of Section 187.201(17)(b), Florida Statutes. Petitioners also allege that the Amendments contradict the requirements of Section 187.201(20)(a), Florida Statutes, which deals with cooperation between levels of government, elimination of needless duplication, and promotion of cooperation. Again, the purpose of the Amendments is to eliminate duplication and promote cooperation between entities by encouraging utility providers to enter into interlocal agreements with the County that define exclusive service areas and prevent duplication of services. Further, the Amendments are consistent with the specific provisions of Section 187.201(20)(b), Florida Statutes. Other Objections Finally, any other contentions raised in the Petitions and Amended Petition not specifically addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Amendments adopted by Ordinance No. 2004-026 on August 24, 2004, are in compliance. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2005.
Findings Of Fact The following findings of fact are based on the evidence presented and relate both to Fairfield's MSSW and CUP applications: Fort George Island is an approximately 900 acre island located northeast of the City of Jacksonville in Duval County, Florida. It is bounded to the north and east by the Fort George River, to the west by an extensive salt marsh, and to the south by Batten Island and the St. Johns River. The island is separated from the Atlantic Ocean by Little Talbot Island. There are presently approximately 16 homes on Fort George Island, an existing 18-hole golf course with clubhouse, the Kingsley Plantation State Park in the north and the Rollins site surface waters on the northern two-thirds of the island are Class II waters, while the waters to the south are Class III. The following factors concerning Fort George Island are of ecological significance: Existence of a large area of coastal hammock; Value of the coastal hammock for scientific research and as a food source for migrating song birds; Fact that the Island is located in an aquatic preserve; Salt marshes on the western side of the Island which are a food source for wading birds; State lands on the Island which are utilized as wildlife and plant preserve, as well as for historical purposes; Estuaries on the western side of the Island which function as primary nursery areas for commercial and sport fishery species, as well as for shrimp, oysters and crabs; Existence of commercial oyster leases on the western side of the Island; and Public use of the Island's shoreline for oystering and clamming. Fairfield owns approximately 757.5 acres on Fort George Island which it proposes to develop into a "planned unit development" of 1,343 dwelling units, a 27 hole golf course, and approximately 80,000 square feet of commercial development. The approximate density of the development will be 1.8 units per acre. Approximately 80% of Fairfield's property is currently forested, and after development approximately 35% will remain undisturbed habitat. The City of Jacksonville approved the "planned unit development" on January 10, 1983. Because the Department of Community Affairs had determined on August 11, 1982, that this development was a "development of regional impact," Fairfield submitted an Application for Development Approval to the Department, the Northeast Florida Regional Planning Council, and the City of Jacksonville, which subsequently approved the proposed development in an Amended Development Order. On January 25, 1984, the Florida Land and Water Adjudicatory Commission approved the Amended Development Order (ADO). In addition to approving the development of maximum of 1,343 units, 80,000 square feet of commercial area, two 18 hole golf courses (one already in existence), and a marina with not more than 50 slips, the ADO required Fairfield to conduct a 12 month study and prepare a Master Resource Management Plan prior to development. Specifically, Fairfield was required to demonstrate that there is a sufficient supply of potable ground water to serve the entire development without adverse effects on the Floridan Aquifer and other existing legal users; establish the ambient conditions of the water surrounding Fort George Island and the ambient climatic conditions of the Island and Rollins Sanctuary through a 12 month monitoring program; identify all endangered, threatened, unique, rare, notable and "species of special concern" and determine their habitat requirements; address surface water quality and quantity, terrestrial and wetlands biology, and ground water quality and quantity for the entire project; and submit a revised Master Land Use Plan, consistent with the Master Resource Management Plan, to the City of Jacksonville's Planning Commission for its approval. Further, the ADO required Fairfield to demonstrate that it could retain the 100 year, 24-hour storm (calculated to be 11.04 inches of rain in 24 hours), and prevent degradation of the established ambient conditions of the waters surrounding Fort George. Finally, the ADO required Fairfield to submit its Master Resource Management Plan to the City, Regional Planning Council, Department of Community Affairs, Department of Environmental Regulation, Department of Natural Resources, Game and Fresh Water Fish Commission, and the District, for their, review, comment, and in some cases approval. After review and comment by these agencies, the City of Jacksonville Planning Commission approved the Master Resource Management Plan on January 29, 1986, from which no appeal was taken. Case Number 85-3537 (MSSW) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's MSSW application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's conceptual MSSW permit application the permit number 4-031-002AC. Fairfield is a Delaware corporation authorized to do business in Florida. Its address is 3520 Piedmont Road, N.E., Atlanta, Georgia 30305. The proposed MSSW will serve Fairfield's development on Fort George Island, located in Duval County at Section 34, Township 15, Range 29 East. Petitioner Friends of Fort George, Inc., is a not-for- profit Florida Corporation, whose principal office for the transaction of business is located at 11251 Fort George Road, East, Jacksonville, Florida 32226. Petitioner in Intervention Southeastern Fisheries Association is a Florida not-for profit corporation whose address is 312 East Georgia Street, Tallahassee, Florida 32301. Petitioner in Intervention Logan Diving, Inc., is a Florida corporation whose address is 5731 St. Augustine Road, Jacksonville, Florida 32207. Petitioners in Intervention Florida Audubon Society and Duval Audubon Society are not-for-profit Florida corporations whose principal offices for the transaction of business are located at 1101 Audubon Way, Maitland, Florida 32751 and 2°65 Forest Circle, Jacksonville, Florida 32217. Individual Petitioners William E. Arnold, Jr., William M. Bliss, Doris B. Chappelle, Leo E. Chappelle, Mr. & Mrs. Rhodes Gay, Dr. & Mrs. William J. Knauer, Jr., Camillus S. Lengle, Jr., and Mr. & Mrs. J. W. Lucas are natural persons and citizens of the State of Florida who are owners of real property on Fort George Island. On August 27, 1985, the District gave Notice of its intent to deny MSSW application No. 4-031-002AC. On September 23, 1985, the District determined to recommend issuance of MSSW Application No. 4-031-002AC, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced MSSW application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility from 36 to 27 holes Fairfield's total requirements for water for irrigation were reduced. By pleading dated April 7, 1986, Fairfield moved to amend its conceptual MSSW approval application. On April 10, 1986, the motion was granted pursuant to Stipulation of all the parties. The motion was granted by written Order of the Hearing Officer on April 17, 1986. The Petitioners' original Petition for Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the natural resources on Fort George Island. Protection of this resource falls within-the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation, and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioners and Intervenors is denial of the conceptual management and storage of surface waters permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. Petitioners, Friends of Fort George, Inc. and Intervenors, Florida Audubon Society and Duval Audubon Society have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. During the hearing, the parties stipulated that Logan Diving, Inc., has standing in this proceeding since it is the holder of oyster and clam harvesting leases from the Department of Natural Resources for beds located in Class II waters adjacent to Fort George Island and it derives substantial income from harvesting of these beds. Closure or reclassification of these waters to limit or preclude shellfish harvesting would impair the value of Logan Diving's shellfish leases, or render them worthless. The following findings of fact relating to Fairfield's MSSW application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Southeastern Fisheries Association, Inc., established at the hearing that it is a not-for-profit incorporated association of seafood producers, packers, canners, processors, wholesalers, retailers and others substantially involved in the seafood and fishing industries. Based upon the testimony of Robert P. Jones, 200 to 250 of the Association's 350 members shrimp in waters in the vicinity of Fort George Island, 26 of its members are residents of Duval or Massau Counties and 6 are residents of Fort George Island. Thus, a significant number of the Association's members harvest and transport seafood from the waters in the area of Fort George Island, and others also pack and process seafood from these waters. They would be substantially affected if the quality of these waters was degraded, or if the waters were closed to shellfish harvesting as a result of destruction to the nursery areas or reduction in quality or quantity of fish or shellfish which are harvested in these waters, or which utilize these waters as nursery areas. The objectives and purposes of the Association include promoting the general welfare of the fisheries industry and enhancing its economic progress. In contrast, the Florida Wildlife Federation was allowed to participate in this hearing but failed to offer any evidence in support of its verified Petition at the hearing. Fairfield's MSSW application is for conceptual approval, pursuant to District rule, and if conceptual approval is obtained Fairfield will then have to re-apply for construction, operation and maintenance MSSW permits. Although this is an application for conceptual approval, the documentation and information submitted by Fairfield to the District in support of its application is more thorough and complete than almost any other application for conceptual approval received by the District, and is actually superior to the documentation and information received from most applicants for construction permits. According to District staff, more sampling and testing results are presented in this conceptual application than they ever get. After initial review of its MSSW application by District staff following submission on January 5, 1984, Fairfield received a request for additional information. In responding to this request, Fairfield developed a plan of study which was approved by District staff and which focused on the water supply potential of the surficial aquifer, and the ability of a stormwater management and control system to retain stormwater on-site in compliance with the ADO and the District's permitting rules. Fairfield's study was comprehensive, and was completed in a very competent, professional manner. It included the collection of data through soil borings, installation of monitoring wells, conducting permeability and percolation tests, collecting rainfall data' and sampling of water quality. A water budget model was developed, and approved by the District, to compare existing conditions to proposed developed conditions and to specifically determine the water supply potential of the surficial aquifer, assess the availability of water for irrigation after development, assess changes in recharge to the surficial aquifer after development, and generally to determine how the development would impact the existing hyrologic cycle on the Island. Considering all of the evidence presented, it is specifically found that Fairfield utilized correct and appropriate input parameters in its water budget model to determine that currently 17.5 inches per year of freshwater is flowing from the Island to the surrounding estuary under average annual rainfall conditions, and after development approximately 16 inches per year of freshwater will flow from the Island to the estuary--less than a 10% change in ground- water flowing to the estuary. Therefore, the subject development will not adversely impact the overall water balance on Fort George Island. Utilizing the water budget model, under developed conditions it is shown that in a one-in-ten dry year there will be slightly more fresh water flow from the Island, and in a one-in-ten wet year there will be slightly less freshwater flow to the estuary than currently exists. This further demonstrates that overall water balance will be maintained. Total recharge will be greater post-development in average, wet and dry years. Fairfield's stormwater management system consists of a series of golf course fairway retention areas, and also includes four ponds in the north of the island which are interconnected, and one in the south, into which storm water will flow. The retention ponds comprise an area of approximately 32 acres. The fairway retention areas maximize percolation or infiltration, and water that remains to enter these ponds will be used for golf course irrigation through pumping. Generally, 95% of golf course need will be met by such pumping from the ponds, with the remaining need being met by withdrawals from the Floridan Aquifer. Under dry conditions, the need to withdraw from the Floridan Aquifer will be greater and could approach 49% of golf course irrigation requirements. The fairway retention areas and the five storage ponds comprise an on-line treatment system which will retain the first one-half inch of runoff, as well as additional runoff. Fairfield's on-line system is equivalent to an off-line system required by Rule Chapter 40C-42, Florida Administrative Code, for discharges to Outstanding Florida Waters (OFW) such as those that surround Fort George Island. Thus, the "first flush" containing a higher level of pollutants will be received by the retention areas and ponds in this on-line system and will primarily be removed through percolation in the retention areas. Pollutants should not be discharged into the estuaries, even in emergencies or when conditions exceed design capacity. Pond retention time will be approximately two months and surficial runoff will account for 5%-10% of the water in the ponds, with the rest coming from ground-water in-flow. Fairfield's storm water management system is operational and maintainable. It will be able to retain the 100 year, 24 hour storm event and otherwise meet the District's requirement that post-development discharge not exceed pre- development peak discharge. Surface discharges from the system will occur infrequently, perhaps every 80 years. Currently there is about one-half inch of direct surface runoff annually. Since surface runoff is a primary source of pollutant transport, the elimination of this runoff will have a beneficial effect on the estuary. The system will not degrade the quality of surrounding estuaries or the OFW since discharges to the estuaries will not occur from the ponds except under extreme conditions, and also because of the high level of treatment which will be provided by the ponds. Reasonable assurance has been given that water in the ponds will meet Class III standards, as well as the "free from" standards in Chapter 17-3, Florida Administrative Code, in the immediate future. The proposed ponds will be an improvement over existing borrow pits and bogs on the Island which have drastic side slopes and very long residence times, such as the Osmunda Bog, and will be a better habitat for fish and drinking water source for wildlife than the existing pits. It will also result in an improvement to Blue Pond, with better vegetation and habitat than currently exists, and with wildlife access being insured through preservation areas. A recognized and accepted ground-water flow model was used by Fairfield, and was approved by the District for use in this situation. The surficial aquifer system was correctly modeled as a single layer unit. Clay which underlies the Island is not a significant feature since, at minus 18 feet mean sea level, it is well into the saturated zone of the surficial aquifer and well below the surface water table, and since water levels actually observed in test wells could not be predicted when the top of the clay layer was used in the model as the bottom of the surficial aquifer. When the depth of the surficial aquifer was set at the top of the Hawthorne layer, the model accurately predicted water levels, as correlated against actual measured levels. Surface waters around Fort George Island have been classified as OFW since 1979. No significant development has taken place on the Island since 1979, and therefore ambient water conditions in 1978 and 1979 could reasonably be expected to have been what they are today. The stormwater management system will create a ground- water divide around the retention ponds. Any water falling inside the divide will flow toward the ponds; water falling outside the divide will percolate to the water table and then flow to the estuary. While under existing conditions nutrient pollutants that reach the water table simply flow to the estuary, after development half of the water falling on the golf course will be inside the divide and will therefore flow to the ponds. Therefore, after development there will be less nutrients and other pollutants reaching the estuary than under current conditions. Fairfield's stormwater management system is designed in a manner to ensure that the first 1 1/2 inches of rainfall will be retained or detained from an OFW. In fact, it appears that the system will actually retain runoff from the first 11 inches of rainfall. After analyzing data for metals, nutrients and coliform bacteria, it is found that the ambient water quality of the estuary will not be degraded by Fairfield's proposed development, and in fact there will actually be a net improvement in the quality of water reaching it from the Island. As a result of pollutant removal through filtration, sedimentation, absorption, precipitation, biological activity and dilution, it can reasonably be expected that ground-water seepage from the fairways and ponds to the OFW will meet primary and secondary drinking water standards, as well as Class II standards, and will not degrade the ambient water quality of the estuary. Infrequent surface discharges to the estuary also will not violate Class III standards. Total loading of nutrients to the OFW under developed conditions will be less than under existing conditions, and coliforms reaching the OFW via ground- water will be eliminated. Freshwater surface flow from the developed areas of the Island to the sloughs on the western side of the Island will be virtually eliminated. This elimination will not be detrimental to either salinities or particulate flows to these sloughs. Since there is an average of 50 inches of rainfall on the estuary per year, as opposed to less than 1/2 inch of freshwater runoff, and since the tidal flow is the forcing function in the estuary and not fresh surface water runoff, the salinity levels in the estuary will be largely unchanged. Particulate material will continue to be readily available to the sloughs from the marshlands, and from perimeter buffers which will be preserved by Fairfield around the Island. An undeveloped, preserved buffer zone is retained between the project and the surrounding waters as well as Rollins Sanctuary. This buffer zone is not intruded upon by the retention ponds contouring or berms associated with the development. In addition to the buffer zone, an undisturbed area will also be retained in the development, and the total acreage of the buffer and undisturbed areas will be 226 acres. The buffer and undisturbed areas will be more than adequate to protect the rare, notable, endangered or threatened plant and wildlife species identified on the Island when these areas are considered in relation to Rollins Sanctuary and other properties on the Island in state ownership. There will also be no construction activity in the saltmarsh off the western side of the Island. Extensive surveys conducted by Fairfield identified 26 species of plants and 16 species of wildlife on the Island. The habitat for all but one wildlife species, the gopher tortoise, is the saltmarsh to the west of the Island which will be undisturbed. Two national champion trees were identified and will be preserved. There will be no adverse impacts on notable plants in Rollins Sanctuary or other preservation areas since a 30 meter buffer is provided on the northern boundary of the Sanctuary and no development at all will take place to the west! of the Sanctuary. Woodstorks, the only endangered species identified in the survey, have been observed resting in trees at the western side of the Island in the saltmarsh. They are not nesting on Fort George Island, but return to the D-Dot Ranch south of Jacksonville every night to nest. The western area of the Island will remain undisturbed habitat in a buffer area from 250 to 450 feet wide, as will the southwestern portion of the Island. Woodstorks appear to be using the tidal sloughs for feeding, and development should have no adverse impact on these sloughs. A heron and egret rookery exists on the northern side of the Island, primarily off of Fairfield's property. Approximately 20 nesting pairs of great blue herons and great egrets use this rookery, which appears to be a satellite of regional rookeries. These are not notable species, but Fairfield will provide up to a 600 foot buffer. The gopher tortoise is the only notable terrestrial species on the Island and is a "species of special concern." The undisturbed natural habitat of a major concentration of gopher tortoise on Fairfield's property will be preserved. While the habitat for non-notable species such as bobcat, grey fox, owls and songbirds will be reduced, they will not be extirpated. Significant archaeological sites on Fairfield's property will be preserved and protected, including Mission San Juan del Puerto, the Grave Robbers Mound, the Sugar Mill site, and the Crypt site. If additional sites are found during development, a mitigation plan will be developed for approval by the State Division of Archives, with an evaluation by a professional archaeologist. Indian middens, or trash piles, have been deemed insignificant and will not be preserved. Surface water table draw-downs which will result from Fairfield's system due to pumping from the surficial aquifer will have no adverse impact on either wildlife or plant life on the Island. Such draw-downs will be limited and localized primarily around the ponds. In fact, the water table on the western side of the Island may increase slightly. The draw-down within Rollins Sanctuary or at Rollins Creek will be less than one foot and therefore should not have any adverse impact. Rollins Creek is approximately five feet wide. A fifty foot buffer around the Creek is provided. Only EPA approved chemicals will be used for weed control associated with the ponds, and aeration will be used to assist the production of oxygen in the ponds. Nutrients, nitrates and phosphorous, will be continually analyzed so that immediate corrective action in fertilizer application can be taken if necessary. Fairfield will utilize an integrated pest management program under a plan which must be approved by the District and which will actually reduce the need for chemical pesticides. Only EPA approved pesticides will be used. As for fertilizers, Fairfield will apply fertilizers more frequently, but in lesser amounts, than on the existing golf course. This ensures a better uptake of nitrates and phosphates, thereby reducing unabsorbed nutrients that might flow to the ponds or estuary. A full-time resource manager will be employed to ensure proper operation of the entire stormwater management system. Once the system is in place, Fairfield will conduct a long-term monitoring program of the water quality in the MWBZ, surficial aquifer, the ponds, and any surface water discharges to ensure permit compliance and also to provide a data base for further activities. Such a data base will represent a positive public benefit. Additional beneficial results of the project, after construction permits are obtained, include stabilization of the northern shoreline of the Island which has had notable marshland erosion, and re-aligning a road on the western side of in the Island to eliminate a point where it crosses Big Slough and thereby open the Slough up to additional sheetflow. Middle and Northern Sloughs will be preserved. Mitigation will be required for any disturbance of a small wetland area on the west side of the Island which is approximately 3/4 of an acre in size. Eliminating marsh erosion, and removing vehicle traffic and flow restrictions in the area of Big Slough are clearly in the public interest, as is the preservation of other wetland areas. The District staff originally recommended that Fairfield's MSSW application be denied but after modifications to the application were made, the District staff has recommended approval with conditions to ensure generally that Fairfield: Monitors water quality in the five ponds in accordance with a plan approved by the District, as well as the quantity and quality of all surface water discharges. Monitors water levels in surficial aquifer wells and reports such data to the District Recalibrates its surficial aquifer and water budget models every five years using the actual monitoring data it has collected and reported to the District in the preceding years, and if such recalibration indicates more than a 50% increase in the volume or frequency of surface water discharges, the stormwater management system must be altered, with District approval, to prevent such increases Submits a pesticide management plan for District approval. Submits a mitigation plan for District approval, at the time of application for construction permits, that will mitigate for any loss to off-site aquatic and wetland dependent species associated with project development in the area of the tidal sloughs on the west coast of the Island. A total of fourteen specific conditions which the District staff recommends be placed on the conceptual approval of the MSSW permit are contained in the Management and Storage of Surface Waters Summary Sheet, dated May 1986, which is hereby incorporated by reference and found to be reasonable in its entirety. Case Number 85-3596 (CUP) The following findings of fact are based upon the stipulation of the parties and relate to Fairfield's CUP application: The District, a special taxing district and agency, created by Chapter 373, is charged with the statutory responsibility for the administration and enforcement of permitting programs pursuant to Sections 373.219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency involved in this proceeding. The District has assigned Fairfield's CUP application the permit number 2-031-0021AN. Findings of Fact 10, 11, 14 and 15 which are set forth above are hereby readopted and incorporated herein. On December 1, 1983, Fairfield, through its then-agent George Register, III, submitted to the District the subject CUP application. The application was assigned No. 2-031-0021AN. On August 23, 1985, the District gave notice of its intent to deny CUP application No. 2-031-0021AN. On September 23, 1985, the District determined to recommend issuance of CUP application No. 2-031-0021AN, as then modified, with conditions. Fairfield had originally contemplated in both its original Master Resource Management Plan (MRMP) and the referenced CUP application that its proposed development for Fort George Island would have a 36-hole golf course facility. Fairfield subsequently reduced its proposed golf course facility from 36 holes to 27 holes. The City of Jacksonville's Planning Commission approved the MRMP with conditions, including the condition that the golf course be reduced, on January 29, 1986. Because of the reduction in size of Fairfield's proposed golf course facility form 36 to 27 holes, Fairfield's total requirements for irrigation water were reduced. By pleading dated February 28, 1986, Fairfield moved to amend its application. The motion was granted by the Hearing Officer on March 11, 1986. In light of this amended application, the District issued a revised "Consumptive Uses of Water Summary Sheet," dated March-24, 1986, to reflect this amended request and to recommend issuance of the CUP. The Petitioners' original Petition For Formal Administrative Proceedings was timely filed within fourteen (14) days of receipt of the District's proposed agency action of September 23, 1985. A number of the members of Friends of Fort George, Inc. own real property on Fort George Island, reside on the Island, and possess drinking water wells on the Island and engage in recreational activities on the Island and its adjacent waters and environs. The subject matter of the proposed agency action challenged by Petitioners and Intervenors concerns the water resources on Fort George Island, including its drinking water supply. Protection of this resource falls within the general purpose and objectives of Friends of Fort George, Inc., namely, the preservation, conservation and restoration of Fort George Island and surrounding environs. The relief requested in this proceeding by Petitioner and Intervenor is denial of the proposed consumptive use permit. The water storage ponds proposed in the project will intersect with the surficial aquifer on Fort George Island. The residential value of Petitioners' property on Fort George Island would decrease if the property had absolutely no access to potable water. Petitioners and Intervenors have standing pursuant to Section 403.412(5), Florida Statutes, to bring this action. The following findings of fact relating to Fairfield's CUP application are based upon the evidence presented, including the demeanor and credibility of witnesses who testified: Following review of Fairfield's CUP application, District staff requested additional information on January 11, 1984; Fairfield developed a plan of study to supply the requested additional information, and the plan of study was approved by District staff. The plan of study sought to find out the nature and characteristics of an anomaly in the northeastern part of the Island, and also to determine if Fairfield's proposed usage would have any affect on existing legal users. As part of the study, Fairfield conducted a well inventory and survey, water quality survey, water level measurements, and vertical investigations. The study also examined three alternatives to obtaining water from the various water bearing zones under Fort George Island, including drilling a test well (TP-2) into the Middle Water Bearing Zone after obtaining appropriate permits. The Floridan Aquifer below Fort George Island consists of three zones--The Upper Water Bearing Zone (UWBZ), Middle Water Bearing Zone (MWBZ) and Lower Water Bearing Zone (LWBZ). The bottom of the Hawthorne formation separating the surficial and Floridan aquifers occurs at about 400 feet below mean sea level. The UWBZ exists from of depth of approximately 520 feet to 1000 feet. Below the UWBZ is an upper semiconfining zone from a depth of approximately 1000 to 1200 feet. The MWBZ is generally 100 feet thick and exists from a depth of approximately 1200 to 1700 feet, below which is a lower semiconfining zone from a depth of approximately 1700 to 2000 feet. The MWBZ is a single water producing zone with interconnected channels or flow zones. The LWBZ exists from a depth of approximately 2000 to 2100 feet, below which is a lower confining unit. The confining zones are saturated with water but are less permeable than any of the water bearing zones. Regional ground-water flow in the Floridan Aquifer at Fort George Island is from the west to the east, northeast and southeast. Water quality to a depth of approximately 1900 feet is generally good, with chloride concentrations of less than 50 milligrams per liter (mgl). In the UWBZ chloride concentrations are generally 10-15 mgl. However, in the north eastern part of the Island chloride concentrations are approximately ten times higher, although still considered potable, due to an anomaly which exists in this area with a radius of approximately 1000 feet, and which allows the flow of water directly from the LWBZ to theMWBZ and LWBZ. While the potentiometric surface or pressure for most of the Island is 39 feet, at the anomaly it is 43 feet above mean sea level. The anomaly was caused either by a sinkhole or fault and acts as a localized conduit or coins source of lower quality water from the LWBZ to the UWBZ. No other point sources of lower quality water exist on the island. The Hawthorne formation was found to exist approximately fifty feet deeper in the area of the anomaly than on the rest of the Island. Existing users on Fort George Island draw water from the UWBZ. Fairfield proposes to draw its water from the MWBZ at a rate of 101.11 million gallons per year in an average year, and 181.04 million gallons per year in a 1 in 10 dry year, and will be the only user of water from the MWBZ on the Island. Household use consumption is projected to be 129.3 gallons per capita which is below the District average of 150 gallons per capita. Based upon pump tests already conducted by Fairfield, the MWBZ will produce more than enough water to meet Fairfield's needs for its project and such pumping will have no adverse impact on the UWBZ or existing users. Pumping from the MWBZ will also have no adverse impact on the MWBZ. Specifically, salt water intrusion from the surrounding estuary or from the tWBZ to the MWBZ will not significantly increase, chloride levels will not increase and potentiometric levels will not decrease in the MWBZ due to this pumping. The MWBZ will produce an adequate Supply of potable water for 15 to 30 years. Fairfield does propose to use well P-1 in the UWBZ in emergency situations but such usage will have no adverse impact on the quality of the UWBZ or its existing users. Use of the MWBZ will be minimized by maximum utilization of the surface water management system ponds for irrigation needs. Well TP-2 is approximately a mile from the anomaly in a south-southwesterly direction. It was constructed by Fairfield, after obtaining necessary permits, with casing to a depth of 771 feet all the way through the UWBZ and into the underlying confining bed. Pump tests were conducted on the MWBZ using TP-2, which is the only well on the Island in the MWBZ. No separate monitoring well in the MWBZ was required by the District, and none was utilized by Fairfield because the flow off 2,000 gallons per minute from TP-2 was so strong that a separate monitoring well was not necessary. When TP-2 was pumped, there was no measurable change in nearby UWBZ wells. This confirms that the MWBZ is hydrologically separate from the UWBZ, other than at the anomaly, and pumping from one will not affect wells in the other. In response to a request from the District, Fairfield utilized conservative factors in applying a mathematical model to determine the effects of its proposed pumping on the Floridan Aquifer. Using the USGS contaminant transport model, which is professionally accepted and appropriate for use in this case, and after proper calibration to reproduced observed conditions, it was determined that chloride concentrations in the MWBZ will not be adversely affected, nor will potentiometric surfaces of the UWBZ or MWBZ when pumping is conducted from TP-2 in the MWBZ over a thirty year period. At most, pumping from TP-2 could result in a slight increase of flow from the anomaly into the MWBZ, with a minimal increase in chloride concentrations. Fairfield has agreed to install a monitoring well in the MWBZ and to monitor several wells in the UWBZ in order to constantly test and monitor chloride levels. Currently chloride levels in the MWBZ are 25 mgl and the limit for potable water is 250 mgl. The monitoring well will be approximately 550 feet northeast of well TP-2, and will detect any changes in chloride levels with sufficient lead time for Fairfield to initiate action to drill another well into the MWBZ further from the chloride source. It is estimated that such lead time could reasonably be as much as ten years. Even without Fairfield's pumping from the MWBZ, water quality in the UWBZ would be expected to degrade, as it has historically, as a result of regional pumping which has caused a regional decline in water quality and 37 SO as a result of flow from the anomaly. Existing users may actually benefit from Fairfield's pumping from the MWBZ and the decline in the quality of the UWBZ may be slowed due to Fairfield's elimination of golf course irrigation which currently comes from the UMBZ at a rate of approximately 175,000 gallons per day, accounting for approximately 90% of all current water usage on the Island. Pumping from the Floridan Aquifer will be conducted to supplement irrigation from the stormwater management system. Fairfield will use up to 580,000 gallons per day for golf course irrigation in dry years. However, even in a dry year the primary source for golf course irrigation will still be from the stormwater management system. In an average year, approximately 95% of irrigation needs will be met by the surface water management system ponds. In a wet year there should be no need to pump from the Aquifer. The District staff originally recommended denial of Fairfield's CUP application when it was for a 36 hole golf course, anad for withdrawal of potable water from the UWBZ with only golf course irrigation being from the MWBZ. Fairfield has modified its application and now proposes a 27 golf course with all water needs coming from the MWBZ, except in an emergency when well P-1 in the UWBZ may be used. The District staff has now recommended approval, with a total of twenty conditions contained in the "Consumptive Uses of Water Summary Sheet," which are hereby incorporated by reference and which ensure generally that Fairfield: Mitigates any adverse impact caused by withdrawals permitted herein on existing legal uses of water; the District may curtail any withdrawal if there are adverse impacts on existing legal users. Mitigates any adverse impacts caused by withdrawals permitted herein on existing adjacent land uses; the District may curtail any withdrawal if there are adverse impacts on existing adjacent land uses. Must reapply for another CUP after seven years from issuance. Begins irrigating the existing 18 hole golf course from the MWBZ by March 1, 1987, with existing UWBZ irrigation wells only to be used thereafter for fire protection. Institutes a sampling program for existing wells in the UWBZ and MWBZ. Supplies all potable and supplemental irrigation requirements from the MWBZ, and keeps monthly records of such withdrawals. Drills and maintains a monitoring well in the MWBZ approximately 550 feet northeast of its MWBZ potable and supplemental irrigation well, and provides long term water quality samples to the District from the monitoring well. The District staff's recommended conditions are found to be reasonable in their entirety.
Recommendation Based on the foregoing, it is recommended that the St. John's River Water Management District issue to Fairfield Communities, Inc., conceptual approval of MSSW permit number 4- 031-002AC with conditions set forth in the District's Management and Storage of Surface Waters Summary Sheet, dated May 1986, and also issue to Fairfield Communities, Inc., CUP number 2-031- 3021AN with conditions set forth in the District's Consumptive Uses of Water Summary Sheet. Further, it is recommended that the Florida Wildlife Federation be dismissed as a party in this proceeding. DONE and ENTERED this 6th day of October, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 6th day of October, 1986. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management Post Office Box 1429 Palatka, FL 32078-1429 Segundo J. Fernandez, Esquire Post Office Box 6507 Tallahassee, FL 32314 Thomas G. Pelham, Esquire Post Office Drawer 11300 Tallahassee, FL 32302-3300 Kathryn L. Mennella, Esquire Post Office Box 1429 Palatka, FL 32087-1429 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Jeffrey R. Lugwig, Esquire One Independent Square Jacksonville, FL 32276 Stephen O'Hara, Jr., Esquire 1500 American Heritage Life Building Jacksonville, FL 32202 APPENDIX Rulings on Petitioners' and Intervenors' Proposed Findings of Fact: 1. Adopted in Findings of Fact 9-27, 58-73. 2-7. Rejected as irrelevant and unnecessary 8. Adopted in Findings of Fact 36, 42. 9-10. Rejected as irrelevant and unnecessary 11. Adopted in part in Findings of Fact 4, 77, but otherwise rejected as irrelevant and unnecessary 12-24. Adopted in Finding of Fact 15, but otherwise rejected as unnecessary or not based on competent substantial evidence. 25-27. Rejected as irrelevant and unnecessary 28-39. Adopted and rejected in Finding of Fact 76, but otherwise rejected as irrelevant and unnecessary 40-45. Rejected in Findings of Fact 25, 77, 78 and otherwise not based on competent substantial evidence. Rejected in Finding of Fact 76. Rejected as irrelevant. 48-50. Rejected in Findings of Fact 77, 78 and otherwise not based on competent substantial evidence. 51-52. Rejected as unnecessary. 53. Rejected as not based on competent substantial evidence. 54-55. Rejected in Findings of Fact 77, 78. 56. Adopted in Finding of Fact 56. 57-63. Rejected in Finding of Fact 79 and otherwise not based on competent substantial evidence. 64-66. Rejected as irrelevant and unnecessary. 67-75. Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence. 76-79. Rejected in Finding of Fact 79, and otherwise not based on competent substantial evidence. 80-83 Rejected in Finding of Fact 75, and otherwise irrelevant and not based on competent substantial evidence. Rejected in Finding of Fact 78 Rejected as irrelevant and unnecessary. 86-87. Rejected in Finding of Fact 75. 88-107. Adopted and rejected in part in Findings of Fact 75, 78, and otherwise irrelevant and not based on competent substantial evidence. 108. Rejected in Finding of Fact 79. 109-111. Rejected in Findings of Fact 76, 80. Adopted in Finding of Fact 80. Rejected as irrelevant and unnecessary. 114-116. Adopted in Finding of Fact 80. 117-120. Rejected as irrelevant and not based on competent substantial evidence. 121-136. Rejected in Finding of Fact 37 and otherwise unnecessary and not based on competent substantial evidence. Rejected as not based on competent substantial evidence. Rejected as unnecessary and cumulative. 139-141. Rejected as not based on competent substantial evidence. 142-144. Rejected as unnecessary and cumulative. 145-147. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 36, 37. Rejected as unnecessary and cumulative. Rejected as not based on competent substantial evidence 151-161. Rejected as unnecessary, cumulative and not based on competent substantial evidence. 162-164. Rejected in Finding of Fact 37 and otherwise not based on competent substantial evidence. 165-169. Rejected as unnecessary and cumulative. 170. Rejected in Findings of Fact 34, 39, 41. 171-173. Rejected as unnecessary and cumulative. 174-177. Rejected in Findings of Fact 36, 37. 178-179. Rejected in Findings of Fact 50, 51. 180. Adopted in Finding of Fact 39. 181-186. Rejected as not based on competent substantial evidence and otherwise unnecessary. 187-189. Rejected in Finding of Fact 32, and otherwise not based on competent substantial evidence. 190-193. Rejected as unnecessary and cumulative. 194-195. Rejected as not based on competent substantial evidence. 196. Rejected as unnecessary. 197-200. Rejected as not based on competent substantial evidence. 201-205. Rejected in Findings of Fact 32, 33 and otherwise not based on competent substantial evidence. 206-210. Rejected in Findings of Fact 32, 33, 36, 37. 211-268. Rejected in Findings of Fact 35, 36, 39-41, 52-54 and otherwise unnecessary and contrary to competent substantial evidence. 269-278. Adopted in part in Finding of Fact 3, but otherwise rejected as unnecessary. 279-297. Rejected in Findings of Fact 32, 33, 35, 36, 41, 42 and otherwise as unnecessary. 298. Rejected as irrelevant and unnecessary. 299-300. Adopted in part in Finding of Fact 3. Rejected as unnecessary. Rejected in Finding of Fact 44. Adopted and rejected in part in Findings of Fact 45-47. 304-305. Adopted in Finding of Fact 4. 306-312. Rejected in Findings of Fact 44-48 and otherwise not based on competent substantial evidence. Rejected in Findings of Fact 43, 45. Rejected in Finding of Fact 48. 315-321. Rejected as unnecessary and not based on competent substantial evidence. 322-323. Adopted and rejected in part in Finding of Fact 50. 324. Rejected as unnecessary. 325-329. Adopted and rejected in part in Finding of Fact 28. 330. Rejected as unnecessary. Rulings on Respondent Fairfield Communities' Proposed Findings of Fact: Adopted in Findings of Fact 9, 58. Adopted in Findings of Fact 10, 59. Adopted in Findings of Fact 11, 59. Adopted in Findings of Fact 15, 59. Adopted in Finding of Fact 12. Adopted in Findings of Fact 13, 27. Adopted in Findings of Fact 14, 59. Rejected as unnecessary based on Finding of Fact 28 Adopted in Findings of Fact 30, 60. Adopted in Findings of Fact 16, 17, 61, 62. Adopted in Findings of Fact 4, 6, 18, 19 Adopted in Findings of Fact 20, 65. Adopted in Finding of Fact 26. Adopted 1n Findings of Fact 21, 67. Adopted and rejected in Finding of Fact 28 Adopted in Finding of Fact 28. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. 20-22. Adopted in Finding of Fact S. 23-24. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 77, 81. 28-30. Adopted in Finding of Fact 74. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 76 Adopted in Finding of Fact 76. Adopted 1n Findings of Fact 75, 76. Rejected as unnecessary. 36-37. Adopted in Finding of Fact 75. 38. Adopted in Finding of Fact 77, but otherwise rejected 39-40. Adopted in Finding of Fact 76 evidence. 41-43. Adopted in Findings of Fact 76-80, but otherwise rejected as cumulative and unnecessary. 44-47. Adopted in Finding of Fact 74 48-50. Adopted in Finding of Fact 78 51-55 Adopted in Finding of Fact 79. Rejected as unnecessary. Adopted in Findings of Fact 77, 80. Adopted in Findings of Fact 77, 83. Adopted in Finding of Fact 80. Adopted in Findings of Fact 78, 79. Adopted in Finding of Fact 79. 62-63. Adopted in Finding of Fact 81. 64-65. Adopted in Finding of Fact 77 Adopted in Findings of Fact 4; 77. Adopted in Finding of Fact 82. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. 69-70. Rejected as unnecessary and cumulative 71-72. Adopted in Finding of Fact 30. 73-75. Adopted in Finding of Fact 31 76-84. Adopted in Findings of Fact 31, 32, but otherwise rejected as unnecessary 85-88. Adopted in Finding of Fact 33. 89-92. Adopted in Findings of Fact 36, 37, but otherwise rejected as unnecessary. Adopted in Finding of Fact 34. Adopted in Finding of Fact 82, but otherwise rejected as unnecessary. Rejected as unnecessary Adopted in Finding of Fact 43 Adopted in Finding of Fact 36 Adopted in Findings of Fact 4i, 42 Adopted in Findings of Fact 2, 38 Adopted in Findings of Fact 41, 42. 101-102. Adopted in Finding of Fact 39 Adopted in Finding of Fact 40. Adopted in Finding of Fact 35. 105-105. Adopted in Finding of Fact 41. 110-115. Adopted in Finding of Fact 42 116-117. Adopted in Findings of Fact 36, 42, but otherwise rejected as unnecessary. 118-121. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary 122. Rejected as unnecessary, cumulative and inaccurate. 123-125. Rejected as cumulative and unnecessary. Adopted in Findings of Fact 29, 31. Adopted in Finding of Fact 43. 128-131. Adopted in Finding of Fact 56. 132-133. Adopted in Finding of Fact 36. 134-135. Adopted in Finding of Fact 56, but otherwise rejected as unnecessary. 136. Adopted in Finding of Fact 51. 137-138. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Adopted in Finding of Fact 52. Adopted in Findings of Fact 52, 53. Adopted in Finding of Fact 54. Adopted in Finding of Fact 55. 144-148. Adopted in Finding of Fact 44, but otherwise rejected as unnecessary. 149. Adopted in Findings of Fact 4, 43, 44, but otherwise rejected as unnecessary. 150-151. Adopted in Finding of Fact 45. Rejected as unnecessary. Adopted in Finding of Fact 45. 154-155. Adopted in Finding of Fact 46. Adopted in Finding of Fact 47. Adopted in Finding of Fact 48. 158-160. Adopted in Finding of Fact 49. Rulings on Respondent St. John's River Water Management District's Proposed Findings of Fact: (The District's proposal was not timely filed, and the District did not seek permission from the Hearing Officer for late filing. It also consists of serial, unnumbered paragraphs from pages 18 to 48 despite specific instruction of the Hearing Officer to the parties to number paragraphs in proposed findings in order to allow specific rulings to be made. Despite these failures, a ruling will be made on the District's proposals, after having consecutively numbered each unnumbered paragraph, since counsel for the District indicates counsel for Petitioners has no objection to this late-filing, and in fact no Motion to Strike has been filed on behalf of Petitioners.) Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 75. Adopted in Finding of Fact 76. Adopted in Findings of Fact 77, 81. Adopted in Finding of Fact 60. Adopted in Finding of Fact 30.47 Adopted in Findings of Fact 16, 17. Adopted in Finding of Fact 18. Adopted in Finding of Fact 6. Adopted in Findings of Fact 66, 83. Adopted in Finding of Fact 83. Adopted in Finding of Fact 20. 15-16. Adopted in Finding of Fact 57. 17. Adopted in Findings of Fact 21, G7. 18-21. Adopted in Finding of Fact 74. Adopted in Findings of Fact 74-76. Adopted in Finding of Fact 74. 24-26. Rejected as irrelevant and unnecessary. 27. Adopted in Finding of Fact 77. 28-35. Adopted in Finding of Fact 76. 36-41. Adopted in Finding of Fact 78. 42. Adopted in Finding of Fact 80. 43-45. Adopted in Finding of Fact 79. Adopted in Finding of Fact 75. Adopted in Findings of Fact 75, 79. Adopted in Finding of Fact 79. 49-50. Adopted in Finding of Fact 81. 51-52. Adopted in Finding of Fact 79. Adopted in Finding of Fact 80. Adopted in Finding of Fact 79. Adopted in Finding of Fact 77. Adopted in Finding of Fact 81. 57-58. Adopted in Finding of Fact 77. Adopted in Findings of Fact 34, 82. Rejected as unnecessary. Adopted in Finding of Fact 77. Rejected as unnecessary and cumulative. Adopted in Finding of Fact 78. 64-65. Adopted in Finding of Fact 30. 66. Adopted in Findings of Fact 34, 39. 67-72. Adopted in Finding of Fact 31. 73-81. Adopted in Finding of Fact 32. 82. Adopted in Findings of Fact 36, 42. 83-84. Adopted in Findings of Fact 32, 33. 85-87. Adopted in Finding of Fact 33. 88-94. Rejected as unnecessary. 95. Adopted in Finding of Fact 37. 96-98. Adopted in Finding of Fact 36, but otherwise rejected as unnecessary. Adopted in Finding of Fact 54. Adopted in Findings of Fact 34-36. 101-102. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 2, 38. Rejected as unnecessary and cumulative. Adopted in Findings of Fact 36, 39. Adopted in Finding of Fact 39. Adopted in Findings of Fact 41. Adopted in Finding of Fact 35. Rejected as unnecessary. 110-118. Adopted in Finding of Fact 41, but otherwise rejected as unnecessary. Adopted in Finding of Fact 53. Adopted in Findings of Fact 52, 53, but otherwise rejected as unnecessary. Adopted in Finding of Fact 55. Adopted in Finding of Fact 42. 124-128. Adopted in Findings of Fact 32, 36, 42, but otherwise rejected as unnecessary. Adopted in Findings of Fact 35, 42, but otherwise rejected as unnecessary. Rejected as unnecessary. 131-134. Adopted in Finding of Fact 50, but otherwise rejected as unnecessary. 135. Adopted in Findings of Fact 42, 43. 136-138. Adopted in Finding of Fact 56. 139. Adopted in Findings of Fact 36, 56. 140-141. Adopted in Finding of Fact 56. 142. Adopted in Finding of Fact 51. 143-144. Adopted in Finding of Fact 35. Adopted in Finding of Fact 36. Rejected as cumulative, unnecessary and incorrect. Adopted and rejected in part in Finding of Fact 28. Adopted in Finding of Fact 28. ================================================================ AGENCY FINAL ORDER ================================================================ IN THE ST. JOHNS RIVER WATER MANAGEMENT DISTRICT FRIENDS OF FORT GEORGE, INC., Petitioners, and LOGAN DIVING, INC., SOUTHEASTERN FISHERIES ASSOCIATIONS, INC., THE FLORIDA AUDUBON SOCIETY, THE DOAH Case No. 85-3537 DUVAL AUDUBON SOCIETY, and THE (Management and Storage FLORIDA WILDLIFE FEDERATION, of Surface Waters) SJRWMD Case No. 85-3948 Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER, MANAGEMENT DISTRICT, Respondents. / FRIENDS OF FORT GEORGE, INC., et al., Petitioners, and THE FLORIDA AUDUBON SOCIETY DOAH Case No. 85-3596 and THE DUVAL AUDUBON SOCIETY, (Consumptive Use Permit) SJRWMD Case No. 85-394A Intervenors, v. FAIRFIELD COMMUNITIES, INC., and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondents. /
The Issue This proceeding concerns Clarence E. Middlebrook's application #2-069- 0785AUSMV for a consumptive use permit for his project at Wekiva Falls Resort. Staff of the St. Johns River Water Management District have recommended approval of the application with certain specific limiting conditions. Petitioner, Middlebrooks, contends that the limitations placed on the approval are inappropriate and are so onerous as to preclude the continued use of his facility for public bathing. Petitioner, STS, claims that the present recreational use is not a reasonable beneficial use, interferes with existing legal users of water and is not in the public interest. STS urges limitations more restrictive than those proposed by the district staff. The basic issue for resolution, therefore, is what conditions should be placed on an approval of Middlebrook's application relating to recreational use. Approval of his application relating to an existing household consumptive use permit is not at issue. The parties have stipulated that STS has standing as a petitioner in this proceeding. In addition, in their prehearing statement filed on August 28, 1989, the parties have stipulated that the 14-inch and 28-inch standpipes on the Wekiva Falls Resort are governed by and subject to the provisions of Chapter 373, F.S., and Chapter 40C-2, F.A.C. and are legally considered to be wells for purposes of this proceeding.
Findings Of Fact In their Prehearing Stipulation filed on August 28, 1989, the parties have agreed: Middlebrooks is a private individual who co- owns, along with his wife, and does business as the Wekiva Falls Resort in Lake County, Florida. STS is the owner of approximately 1,842 acres of land contiguous to the southern and western boundary of the Wekiva Falls Resort. The District, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373-219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. On September 4, 1985, Petitioner submitted to Respondent a CUP application No. 2-069-0785AUS to withdraw a maximum of .123 million gallons per day (MGD), i.e. 31.7 million gallons per year (MGY) of water for household type use from two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. An administrative hearing was held regarding that application on November 6 and 7, 1986, and a final order was issued on May 14, 1987. The final order was appealed to the Fifth District Court of Appeal which issued its opinion on July 7, 1988 (529 So.2d 1167). Permit No. 2-069-0785AUS was issued by the District as result of these proceedings. Middlebrooks returned the permit by mail to the District. On September 13, 1988, Middlebrooks submitted to Respondent a CUP application No. 2-069-0785AUS to request approval of a maximum of .123 MGD (31.7 MGY) of water for household type use, which was revised on February 21, 1989, to request a maximum 14.26 MGD of water from the two standpipes, one 14 inches in diameter and the other 24 inches in diameter, located on Middlebrooks' property in Lake County, Florida. On March 20, 1989, District's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application No. 2-069-0785AUS. Both Middlebrooks' and STS' petitions for administrative hearing were timely filed with the District. In 1968, C.E. Middlebrooks purchased the 140 acre tract on which the wells are located. The property is bounded on the east by the Wekiva River, and on the west by Wekiva River Road. At the time of purchase the property was underdeveloped and overgrown. Shortly after purchase, Middlebrooks inspected the property and found an oval-shaped depression from which water was flowing. Such flow is common in this area along the corridor of the Wekiva basin. These surficial seeps, also called artesian flows, emanate from the surficial and intermediate aquifers. This, and other substantiative findings regarding the characteristics of the property, were made in the recommended order as adopted in the final order in case #86-2101, on May 13, 1987. Still, Petitioner insists that the water was from a natural spring. The only new evidence presented by Petitioner regarding the existence of a "spring" is the testimony of William Shell, who in the late 1930's used to fish with his father in the tributaries and streams off of the Wekiva River. William Shell claims that he and his father took a 10-foot canoe back into the property and he swam and fished in the "spring". Shell was imprecise as to the location of the spring and conceded that the site identified on a map attached to his statement could be as much as five miles off. His testimony as to the existence and location of a spring is unpersuasive in the face of the contrary historical evidence from aerial photographs, soils and geological survey maps, and the well driller's log describing the strata through which the 24-inch well was drilled. In undertaking the development of the property, Middlebrooks dug out the area in which the wells were ultimately drilled, utilizing a dragline to clear out what is now the existing stream bed between the oval-shaped depression and the area which is now the marina (or canoe basin). Extensive dredging was done to develop the marina at a point approximately 200 feet west of the Wekiva River, and additional dredging was done to connect the marina to the Wekiva River in order to have access by boat to the Wekiva River. The stream which now extends from the western boundary to the Wekiva River is called Canoe Creek. In order to maintain the swimming area and the section of Canoe Creek extending eastward from the swimming area to the Wekiva River, it is necessary for Middlebrooks to dredge the area every two to three years. In 1972 as a part of the development activities described above, Middlebrooks hired a well drilling contractor to drill a 14-inch well at a location within the oval-shaped depression. The well was drilled into the Floridan aquifer to a depth of 107 feet, and well casing 14 inches in diameter was driven to a depth of 58 feet. In 1973 Middlebrooks hired a second well drilling contractor to construct a second well within the oval-shaped depression slightly ease of the 14-inch well. The second well was drilled into the Floridan aquifer to a depth of 120 feet, and well casing 24 inches in diameter was driven to a depth of 80 feet. As part of his development activities, Middlebrooks constructed concrete towers around each of the wells and placed diffuser plates and planters on top of each to give the appearance of a waterfall. A concrete wall and sidewalk were constructed around the oval-shaped area. The water flowing from the wells discharges into the oval-shaped swimming area and then flows eastward through Canoe Creek until it reaches the Wekiva River. Middlebrooks' business, known as Wekiva Falls Resort, has a total of 789 campsites located on the northern and southern sides of the property. The swimming area, which extends from the western end of the concrete-enclosed oval- shaped area where the wells are located, to the wooden bridge which crosses Canoe Creek just west of the marina, is licensed by the Florida Department of Health and Rehabilitative Services (HRS) as a public bathing facility. Middlebrooks also offers canoe rentals and paddleboat tours of the Wekiva River, each of which originate from the marina. Middlebrooks' present business operation centers around the water-based recreational opportunities provided by the water emanating from the wells. The facility employs approximately seventeen persons. Groundwater from the Floridan aquifer flows from the two wells under artesian pressure. Middlebrooks testified that he had calculated the discharge from the two wells to be 12.5 mgd and 12.72 mgd, although his records for the period from April 1986 through January 1989 showed average daily flow from the two wells to be 12.98 mgd. The prior final order entered in this matter determined average daily flow to be 12.47 mgd. Because these are artesian wells, flow varies depending on hydrologic conditions. The gate valve for the 24-inch well was frozen in the open position approximately 12 years ago and has since been encased in concrete making it inoperable. There is a diverter valve at water level, which, if opened, would increase the flow volume from the well, but which has no control over the amount of water flowing through the top of the well. As the well is presently structured, water essentially free flows from the well; Middlebrooks can control flow from the 24-inch well only through manual insertion of a poppet valve which must be first hoisted to the top of the well with a crane and then mechanically inserted into the top of the well. The only time this device is used is when Middlebrooks shuts down the well in order to do dredging or other maintenance activities. Early in 1989, the concrete tower encasing the 14- inch well fell over and had to be removed from the swimming area. The well casing was cut off at pool level, removing the gate valve on it. Although flow increased from the 14- inch well as a result of shortening the length of the casing above ground, Middlebrooks mechanically inserted a poppet valve into the top of the remaining casing in order to restrict flow. Middlebrooks contends that, with the restrictor device which is inserted in the 14-inch well, flow is essentially the same as it was before the casing was cut down and the valve removed. In 1973, shortly after the 24-inch well was constructed, USGS did an analysis of the water coming from the well to determine chloride concentrations. Chloride concentrations were measured at that time to be 230 parts per million (ppm). Chloride concentration is a measure of salt content in the water. The benchmark figure for chloride concentration in water as determined by the United States Environmental Protection Agency (EPA) is 250 pp. Water which exceeds 250 ppm in chloride is nonpotable. At the time these wells were drilled, the water was potable. At the base of the Floridan aquifer in the area in which Middlebrooks' property is located is a layer of seawater, extremely high in chloride concentrations, which became trapped when the ocean water which once covered Florida receded and dry land emerged. This water is called relic sea water and is necessarily very old water. Significant discharges through a well in this region can cause the interface between the fresh water in the Floridan aquifer and the relic sea water to move upward toward the cone of influence of the well and break. This is followed by turbulent mixing of relic sea water and fresh water and results in elevated chloride concentrations in the water discharged from the well. This water is sometimes referred to as connate water. Subsequent tests of the chloride concentrations in Middlebrooks' well have been done, both as part of a regional study done by the district and in preparation for this litigation. These test results show significant changes in the chloride concentrations in the water flowing from Middlebrooks' wells. Samples taken by the district in March and October 1986 showed concentrations of 312 ppm in the 14-inch well and 296 ppm for the 24-inch well for March, and 300 ppm for each of the wells in October. The 14-inch well was sampled again by the district in March and April 1989 and showed levels of 335 ppm and 296 ppm respectively, and an April 1989 sample from the 24-inch well showed 317 ppm. Samples taken by Jammal and Associates on August 5, 1989, showed 280 ppm for the 14-inch well and 290 ppm for the 24-inch well. Averaged, these results show concentrations over the 1986-89 period of 304 ppm for the 14-inch well and 300 ppm for the 24-inch well. The changes observed from the 1973 test and the 1986- 89 tests cannot be attributed to seasonal variations. The only samples taken since 1974 from the wells which do not show significant changes in the chloride concentrations are samples which were collected by Middlebrooks himself. The validity of these results is less credible than the results outlined in the previous paragraph, given the expert testimony supporting the former results. Further, the results shown from the samples collected by Middlebrooks are questionable in light of the elevated levels of minerals (including chlorides) which were noted in the analysis of waters taken from Canoe Creek, through which the water coming from the wells flows to the Wekiva River. The water flowing from Canoe Creek is 17 times higher in chlorides than water in the Wekiva River. Chloride levels in the swimming pool area were measured by Dr. Harper at almost 300 ppm. Even Dr. Roessler, an expert called by Middlebrooks noted high levels of mineralization in the water flowing through Canoe Creek to the Wekiva River from the wells and agreed that reductions in flow from the wells would result in reduced chloride concentrations within Canoe Creek. The importance of the significant increase in chloride concentrations in the water flowing from Middlebrooks' wells, as noted, is that the groundwater coming from those wells in no longer potable. Continued discharge from the wells at the current free flow level will aggravate the problem of increasing chloride levels in those wells and in the immediate vicinity of those wells. If no action is taken to address the upward movement of the saltwater-freshwater interface, there is a potential for transmittance of connate water to wells of adjacent landowners. Reduction in the flows from Middlebrooks' wells would stabilize the saltwater-freshwater interface beneath his wells. This could result in lower chloride concentrations in the water flowing from Middlebrooks' wells, and at the very least, there would be no further aggravation of the problem. Section 10D-5.120, Florida Administrative Code, governs public bathing facilities such as Middlebrooks', and essentially has two water quality requirements. The first is a flow-through requirement which specifies that there must be minimum flow of water through the facility of 500 gallons per bather per 24 hours. The second requirement is that total coliforms must not exceed 1000 most probable number of coliform organisms (mpn) per 100 milliliters. Although Middlebrooks' HRS license for his public bathing facility does not limit the number of bathers who may use his facility, there is an existing injunction obtained against Middlebrooks by Lake County, Florida, which allows a maximum of 2500 persons on the entire premises per day. Middlebrooks has made no effort in the past, nor does he presently make any effort to determine how many patrons actually use the bathing facilities on a daily basis. As the prior final order noted "for all the record shows, he may have never had that many (the maximum) since his permit was issued". The only evidence of actual usage of the bathing facilities showed a maximum of 290 persons in the pool area on a summer weekend. Regardless of how few, if any, persons utilize the bathing area under present conditions, the same amount of water flows from the wells daily. The stream which extends from the western end of the swimming area to Wekiva River Road and then off site receives drainage during wet weather conditions from offsite areas. All of Canoe Creek including the portion west of the swimming area is essentially a catch basin for surface water drainage from Middlebrooks' property. Surface water drainage enters Canoe Creek through overland flow, through swales conveying stormwater to it, and through an assortment of stormwater drainpipes which drain parts of Middlebrooks' property as well as off-site areas. The water entering Canoe Creek from this surface water drainage is extremely high in total coliforms. There are no significant stormwater treatment facilities on the site. A concrete weir with a spillway separates the swimming area from Canoe Creek west of the swimming area. The water in Canoe Creek immediately west of the swimming area is extremely high in total coliforms. A sump pump has been installed just west of the weir which, under normal weather conditions, is capable of pumping enough of the water into a roadside swale, thereby diverting it around the swimming area, to prevent this high coliform water from overtopping the weir and flowing into the swimming area. However, under rainfall conditions, the pump will not prevent this drainage from spilling over the weir and Middlebrooks does not run the pump continuously. Water has also been observed spilling over the weir into the swimming area under normal conditions. The higher coliform water which is pumped into the roadside swale is reintroduced into the swimming area through a culvert pipe midway between the oval area, where the wells are located, and the marina. There is also an apparent influx of total coliforms through surficial seepage and other sources internal to Middlebrooks' property. One of these sources of coliforms could be the wastewater treatment plant operated by Middlebrooks on the property. Other than the part-time operation of the sump pump, which was installed for aesthetic reasons rather than water quality reasons, Middlebrooks has done nothing to control the numerous sources of total coliforms to his swimming area, nor does he propose any modifications to accomplish this in his application. Instead he has relied and proposes to continue to rely on the 12.5 mgd flow of water from his wells to dilute the total coliforms entering the swimming area in order to meet the HRS standards for water quality. Middlebrooks dismisses any alterations to the site to address these total coliforms sources as "impractical". To the contrary, it is practical, technologically feasible, and economically feasible to control the introduction of coliform to the swimming area and meet HRS standards by preventing introduction of coliforms rather than relying on massive amounts of groundwater to meet the standards through dilution. One means would be to operate a sump pump around the clock instead of only on a part-time bases. Installation of additional toilet facilities for campers would reduce the use of Canoe Creek and its vicinity as a toilet. More importantly, treatment facilities such as retention and detention areas to treat stormwater runoff before it enters Canoe Creek, as well as diverting the water around the oval part of the swimming area, would enable Middlebrooks to comply with HRS total coliforms standard without the necessity of utilizing 12.5 mgd of groundwater. Reducing the flow of water from Middlebrooks' wells in accordance with the recommendations contained in the District's staff report would not cause blowouts or any other adverse geological consequences on his property or elsewhere. As indicated earlier, this region is characterized by artesian flow, and there is the potential for increased discharges from springs or other discharge points within the vicinity of Middlebrooks' property if flow is reduced from his wells. Overall, the area should return to a more naturally balanced system such as existed before the wells were constructed. The flow which discharges presently through the wells produces enough water to supply the domestic needs of 90,000 people. Reduction in the discharge from the wells would make additional water available for use for other beneficial purposes within the area as the water which now discharges from Middlebrooks' wells could be withdrawn at other locations within the vicinity of Middlebrooks' property. Through properly spacing wells and limiting their depth, (skimming well fields) these other uses of water could occur without aggravating the existing problem with chloride concentrations. Middlebrooks and one of his employees described water upwelling within the swimming area on one occasion when flow was stopped from the wells. While this would not be unusual in an area characterized by artesian flow, it may also be an indication that well construction problems exist with either or both of the wells. Having the wells geophysically logged as is required in the permit conditions proposed by district staff, would reveal, among other things, whether the well is properly grouted and sealed. If the wells are not properly sealed contaminated connate water could be allowed to move upward and interchange with other water-bearing zones, resulting in chloride contamination in those zones as well. The aquatic and wetland habitat associated with Canoe Creek can be divided into three distinct segments: (1) the intermittent stream extending westward from the weir and spillway to Wekiva River Road (hereinafter "the intermittent stream"); (2) the swimming area which begins at the weir and extends to the bridge just west of the marina (hereinafter "the swimming area"); and (3) the marina which encompasses the dredged boat basin and that portion of Canoe Creek extending eastward from the marina. These three segments have varying importance as aquatic or wetland habitats and can be separately characterized according to the impacts which would be felt from a reduction in the flow of water from the wells as recommended by the district staff report. The intermittent stream is characterized by slow flowing or stagnant water. There are species indicative of a wetland system associated with the channel here, although the banks of the stream have been mowed and maintained. Aquatic and wetland dependent species do utilize this part of the stream; however, they are in less abundance than in other parts of Canoe Creek. Because the hydrology of this portion of the stream is not affected by the flow from the wells, there would be no impact on this area if flow from the wells is reduced. The swimming area, which consists entirely of hard sand, is devoid of biological activity as a result of the regular mechanical maintenance performed on it by Middlebrooks, leaving no vegetation in the channel. Although there are aquatic species which utilize primarily the oval-shaped part of the swimming area, many of these are exotic species. In any event, there would continue to be a flow of water to maintain that environment. The southern bank of Canoe Creek in the swimming area down to the water's edge has been cleared, sodded, and is maintained as a lawn. There are no wetland plant species in this area. There are trees along the northern bank of the stream in this area, and it is less disturbed than the southern bank; however, the understory has been removed. Overall, there would be minimal impact to the aquatic and wetland species within the creek itself, and no impact to plant species along the banks of the creek if flows are reduced in accordance with the District staff' s recommendation. The marina area and the creek eastward of it provide the most abundant and productive part of the creek for aquatic species. This portion of the creek is at the same grade as the Wekiva River and therefore is in equilibrium with the river. Water levels are controlled by the pulse of the river, rather than the flow from the wells, and will be unchanged by reduction of flow from the wells. Although there would be a reduction in the amount of water moving through this area, there would be little, if any, impact to the functions of this portion of the creek as an aquatic habitat if the reduction in flow recommended in the district staff report were accomplished. Viewed as a whole, Canoe Creek, because of the wells and the alterations made to the site by Middlebrooks, is an altered natural environment with an artificially created and maintained ecosystem. The primary natural feature associated with this property is the riverine forested wetlands which extend approximately 200 feet inland from the Wekiva River. This area lies within the floodplain of the river and is influenced by the rise and fall of the river. These wetlands would not be affected at all by reduction in flows from the wells. Middlebrooks has contended that the flow from his wells provides a benefit to the Wekiva River by improving water quality in the river. Extensive water quality data showing the quality of discharges from Canoe Creek, versus ambient conditions in the river both upstream and downstream of Canoe Creek, do not support this assertion. The flow from Canoe Creek does not reduce temperatures in the river nor does it provide a thermal refuge for fish. Dissolved oxygen levels in the water flowing out of Canoe Creek are virtually the same as in the Wekiva River upstream of the creek. Chloride concentrations in the Canoe Creek discharge are 17 times higher than in the river itself. Total coliforms are higher in the Canoe Creek discharge than in the river itself. Although there is a slight reduction in nutrients as a result of the Canoe Creek flow, this slight reduction has no impact in a fast moving system such as the Wekiva River. Significantly, the flow from Canoe Creek violates State Water Quality Standards for specific conductivity (an indicator of the level of mineralization.) The probable source of this violation is the mineralized water flowing from Middlebrooks' wells. Reduction in flows from the wells would not degrade water quality in the Wekiva River and would likely eliminate the source of a specific conductance water quality violation. The 12.5 million gallons per day of groundwater which flows through Middlebrooks' wells (as distinguished from the 31.7 million gallons per year that is used for household type use) is primarily used by him to enable him to charge visitors to swim in the water. Any other uses of the water are secondary. The absolute deadline for making application to the District for continuation of existing uses and thereby to be evaluated as an existing legal user was September 11, 1985. The first application filed by Middlebrooks for an allocation of water for a use other than household type use was filed on September 13, 1988, exactly three years after the deadline for the use to be classified as and evaluated as an existing use. No exemption was sought or claimed for the water supplying the swimming area prior to the September 11, 1985, deadline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered by the District Board approving the issuance of a consumptive use permit to C.E. Middlebrooks for the amounts and under the terms and conditions established in the District's Technical Staff Report dated March 24, 1989. DONE AND RECOMMENDED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by the Petitioners. FACTS PROPOSED BY PETITIONER MIDDLEBROOKS 1-8 Adopted in paragraph 1. 9-12 The existence of a prior "springs" was not proven by a preponderance of evidence and these findings are rejected, with the exception of the date of purchase, which is adopted in paragraph 2. 13 Rejected as unnecessary. 14-18 See 9-12, above. 19-36 Rejected as unnecessary or subordinate to the facts found. 37 Adopted in paragraph 10. 38-43 Rejected as unnecessary or subordinate. 44 Adopted in paragraph 10. 45-46 Adopted in substance in paragraph 24. 47, 48 Adopted in part in paragraph 9. The extent of use was not established. Rejected, except as to the existence of the injunction, which is adopted in paragraph 20. This injunction was apparently the result of neighbors' concern over a proposed rock concert to be held at the site. Adopted in paragraph 19. 51-53 Rejected as unnecessary or subordinate. 54, 55 Rejected as unsupported by the weight of evidence. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as unsupported by the evidence. 59-63 Rejected as unnecessary or subordinate. 64-79 Rejected as contrary to the evidence. 80-81 Rejected as unnecessary or subordinate. Rejected as contrary to the evidence. Rejected as unnecessary. Rejected as contrary to the evidence. 85-90 Rejected as unnecessary or subordinate. Adopted in substance in paragraph 9. Rejected as contrary to the evidence (the "efficiency" of the bathing area). Adopted in part in paragraph 20, otherwise rejected as unnecessary. 94-99 Rejected as cumulative. These same facts are addressed above. 100-101 Adopted in part in paragraph 22. 102-168 Rejected as cumulative. These same facts are addressed above. 109-113 Rejected as contrary to the evidence. 114 Rejected as cumulative 115-118 Rejected as contrary to the evidence. Rejected as unnecessary and irrelevant. Rejected as contrary to the evidence. Rejected as irrelevant. FACTS PROPOSED BY PETITIONER STS Adopted in substance in paragraphs 1 and 5. Adopted in substance in paragraphs 3 and 4. Adopted in paragraphs 6 and 7. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in substance in paragraph 5. Addressed in the Preliminary Statement. Adopted in paragraph 11, conclusions of law. Adopted in paragraph 33. Adopted in substance in paragraphs 24 and 25. Adopted in paragraphs 19 and 25. Adopted in substance in paragraphs 22 and 23. Adopted in paragraph 33. Adopted in substance in paragraph 17. Adopted in substance in paragraph 15. Adopted in substance in paragraph 16. Rejected as contrary to the evidence. 19-22 Rejected as unnecessary or subordinate. COPIES FURNISHED: Robert A. Routa, Esquire P.O. Box 6506 Tallahassee, FL 32314-6506 Frank Matthews, Esquire Kathleen Blizzard, Esquire P.O. Box 6526 Tallahassee, FL 32314-6526 Wayne E. Flowers, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director P.O. Box 1429 Palatka, FL 32178-1429 =================================================================
