The Issue The issue for consideration in this case is whether the Respondent, Hi Hat Cattle and Grove, should be issued water use permit 204387.03, to withdraw groundwater from the wells on its property, and if so, in what amount and under what conditions.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for the permitting of consumptive water use within its area of geographical jurisdiction. The Respondent, Hi Hat, is a family owned farming and ranching operation in eastern Sarasota County with water wells on its property. The Intervenor, City of Sarasota, is a municipality in Sarasota County which operates wells in the general area of those operated by Hi Hat, and which has an agreement with Hi Hat for the latter's use of treated wastewater pumped from the city's treatment plant to Hi Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and resident of Sarasota County whose property is located near the Hi Hat Ranch, and whose potable water is drawn from a well on his property which utilizes both the surficial and intermediate aquifers which are penetrated by the wells on Hi Hat Ranch. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove, the family owned business which operates it, and an additional 3,227 acres leased from the City of Sarasota. Agricultural operations, including citrus farming, truck farming, sod farming, and grazing have been conducted on the ranch since the mid 1940's. In February, 1990, Hi Hat applied to the District for a permit to withdraw and use water from some 14 wells located on its property. It requested an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate of 32, 668,000 gpd. Upon receipt by the District, the application was assigned a number, (204387.03), and was submitted for evaluation by the District staff for conformity with applicable District rules and policies. When the staff evaluation was completed, the District issued a staff report and proposed staff agency action in which it indicated its intention to issue a permit authorizing water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd. In conducting its evaluation, the District staff relied upon the District's Basis of Review For Water Use Permit Applications which contains within it the provision for use of a "water use model" in assessing the need and appropriateness of water withdrawal amounts. This model, known as the Blaney- Criddle Model considers numerous factors in the evaluation, including rainfall, soil characteristics, irrigation methods used, and proposed crop types, all in an effort to determine a reasonable estimate of the applicant's supplemental water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a Hydrologist III employed by the District, and an expert in hydrology, who has, over the years, reviewed between 350 and 400 permit applications, of which approximately 90 percent have been for agriculture. She is, therefore, quite familiar with the specifics of agricultural water use needs. Her evaluation of Hi Hat's application was done in the same manner as the others she has done and utilized the same tests, measurements and factors for consideration in arriving at her conclusion. In its application, a renewal with modification sought to increase average annual quantities due to a change in crop plans, Hi Hat indicated that its criteria for water use was based on certain agricultural uses and application rates. These included: low volume under tree spray irrigation of 778 acres of citrus at an application rate of 17.2 inches/year plus one inch/year for frost and freeze protection. open ditch irrigation of 135 acres of sod at an application rate of 30 inches/year. open ditch irrigation of 1,367 acres of improved pasture at an average application rate of 26.6 inches/year. overhead spray irrigation of 1,200 acres of improved pasture at an application rate of 20.3 inches/year. open ditch irrigation of 110 acres of spring peppers at an application rate of 30.0 inches/crop, and open ditch irrigation of 110 acres of fall peppers at an application rate of 45.2 inches/crop. Applicant also stipulated that the peak monthly quantities that it requested would be utilized for pasture, sod and citrus irrigation during the month of May. The proposed maximum quantities were for frost and freeze protection of citrus only. In January, 1989, Hi Hat entered into a contract with the City of Sarasota under which the City was obligated to deliver reclaimed water from its wastewater treatment plant to a "header" located on the ranch which thereafter distributes the water through pipes to "turnouts" located at various high points on the property. From these, the water is then discharged into a system of ridges and furrows for distribution of the water across the needed area. The reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The Contract provides for minimum and maximum amounts of water to be delivered as well as for water quality standards which must be met. In periods of adequate rainfall, when irrigation is not required, any treated wastewater which is not needed is stored in a 185 million gallon holding pond on City property located adjacent to the ranch. When needed, water can be fed into the wastewater distribution system described above from the holding pond. This reclaimed water, whether from the pond or direct from the header, can also be utilized to irrigate citrus crops, but this requires a filter system which has not yet been able to operate properly. Therefore, no reclaimed water has yet to be utilized for citrus irrigation on the ranch. At an average annual flow of 6.2 million gallons per day, the pond has the capacity to hold enough treated water for almost 30 days. Not all wells on Hi Hat Ranch are active wells. Several of the wells are classified as standby wells which are intended to be used only to back up the reclaimed water delivery system and are located, normally, beside the "turnouts." In the event the reclaimed water is not available from the city, the standby wells can be utilized to provide water to the ridge and furrow system used to irrigate pasture land. The standby wells are numbers 1, 6, 7, 11, 13, 14, and 15. Well number 5, also identified as a standby well in the staff report and in the draft permit was mistakenly so identified. The draft permit contains several special conditions which impact on the drawing of water under the terms of the permit. Significant among these is Special Condition 33 which prohibits the withdrawal of water from any of the standby wells unless the reclaimed water supply from the city is interrupted. Special Condition 27 requires the installation of a flow meter on any standby well that becomes active as a result of permanent discontinuance of the reclaimed water supply. With regard to flow meters, Special Condition 22 requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated this was in error and has recommended that the standby wells be deleted from that Special Condition. When that is done, only those wells actively producing water on a regular basis would require the installation of flow meters. In its analysis of the application for permit, the District staff considered several factors pertinent to the impact the well would have on the water supply in the area and its effect on other users. These factors include hydrologic impacts, well condition, the history of water use at the ranch, the reliability of the reclaimed water system and its ability to provide a uniform source, and the city's water reuse policy. Addressing each individually, and starting with the hydrologic impact of the withdrawal of the requested amounts, the District considered the nature of the existing wells and how they are constructed and maintained. The District assumed, because the data regarding the construction of the existing wells was incomplete and insufficient to properly disclose the status of casing on each well, that they were shallow cased. As a result, the calculations incorporating this assumption indicate a situation that would occur in its most aggravated form. The parties agreed that Hi Hat's wells are shallow cased and probably go no deeper than 90 feet. To determine, as much as possible, the projected drawdowns in the surficial and intermediate aquifers that might be expected if Hi Hat withdrew the amounts of water proposed, the District utilized the "MODFLOW" computer model which factors in simultaneous peak withdrawals from all 14 of the wells along with a 90 day no rainfall drought condition. This, too, contributes to a worst case scenario, and the resultant figures are considered to be conservative estimates of the hydrologic impact of the water withdrawal. Notwithstanding, the application of this computer model resulted in the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's property located approximately one half mile from the ranch border, would be no more than .055 feet. Since normal fluctuations in the surficial aquifer during the course of the year can be as much as 6 feet, the projected drawdown as a result of Hi Hat's withdrawals was considered insignificant. Applying the same assumptions and utilizing the same computer model as it relates to the intermediate aquifer resulted in an indication of a drawdown of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in the intermediate aquifer can range from 15 to 20 feet normally, the District considers that any reduction of less than five feet in the intermediate aquifer is insignificant. The permit held by Hi hat currently allows for the withdrawal of more water than would be withdrawn under the proposed permit as conditioned and is consistent with the proposed reduction in allowable withdrawals. Considering that factor, as well as the prohibition against withdrawals from standby wells as long as reclaimed water is available, the actual impact of the water withdrawals consistent with the proposed permit would be substantially less than the computed prediction which includes production from all wells. Drawdown contours are defined across the entire effected area. One of the levels is a 4 foot contour, and when a computer simulation indicates that the 4 foot contour includes a withdrawal previously or otherwise permitted, the District will generally conduct a cumulative impact analysis. In this case, however, since there was only one golf course well within the area circumscribed by the 4 foot contour line, and since this withdrawal was too small to have effected an evaluation, it was not done. The condition of the wells on the Hi Hat Ranch has some bearing on whether or not the application for additional withdrawal of water should be granted. These wells are almost 30 years old, having been drilled in the 1960's. As a result, there is little information available regarding their construction detail. This is not necessarily unusual for agricultural wells, and there is evidence that there are many similar wells in use within the District. The reason for this is that at the time the wells were drilled, information regarding their depth, casing and other matters were not required to be kept or reported. However, there is no indication the wells are in any way violative of well construction criteria and their use has been authorized continuously since 1977. When he prepared Hi Hat's application, Mr. Turner included much the same information regarding the wells as pertains as to depth and diameter which he had previously submitted in earlier applications and which had been accepted. In each case, casing depths had been reported as unknown. Notwithstanding the information contained in some old well logs relative to only a few of Hi Hat's wells, this information is in no way definitive and it is difficult to describe anything specific with the majority of these wells. Nonetheless, as already found, it is stipulated that most are approximately 90 feet deep. It is reasonable to assume that the existing wells, however, are cased only to a shallow depth, and that in many cases, the existing casings have corroded away, either totally or in part. This can cause an intermixing of water from the separate aquifers, but whether this is in fact happening depends upon factors specific to that particular well. Petitioner did not present any evidence to show that as a result of the condition of Hi Hat's wells, any degradation is occurring in the more potable, surficial aquifer as a result of intermixing with water from the intermediate aquifer on or around the Hi Hat Ranch. In Ms. Jackson's opinion, and there appears to be no evidence to contradict it, the amount of drawdown which would occur as a result of maximum pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water from the Floridan aquifer to percolate upward (upcone) into the better quality water of the two upper aquifers even during drought conditions. By the same token, there is no evidence that drawdown would encourage or permit salt water intrusion. Petitioner attempted to show by the records kept on the various Hi Hat wells that many of them have been abandoned and are no longer operative and should not be allowed to fall within the parameters of this permit. He testified clearly that over the years, the level of water in his potable water well has lowered and presumed that this was the result of increased water usage by other entities which draw from the aquifer into which his well is sunk. Water level, however, depends upon numerous factors, of which usage is only one. Others include recharging of the aquifer and the amount of rainfall and other recharge sources not only in the immediate area but across the large area which feeds the aquifer. Mr. Bishop did not present any evidence showing a causal connection between the lowering of the water in his well, or the degradation in water quality he claims to have experienced, and either the drawdown caused by Hi Hat's operation or by aquifer intermixing. He indicated, and it is not disputed, that within the past year, he has had to take measures to improve the water quality in his potable well, but, again, he has not presented any evidence to show this was caused by Hi Hat's ground water withdrawals. In its long range planning, the District intends to implement a program to rehabilitate old wells, and when that program is implemented, almost every agricultural well within the District may require recasing or redrilling. This program will not be implemented for several years, however. In an effort, however, to insure that all reasonable precautions are taken to see that approval of any petition for withdrawal does not have an unacceptable adverse impact on the water needs of the surrounding community, in its analysis of this application, and in all cases, the District makes certain assumptions when adequate empirical data is not available. In this case, pertaining to the unavailability of information regarding Hi Hat's wells, the District assumed that all wells were shallow cased, and this placed the application in the worst possible light. Shallow cased wells allow more upconing and aquifer intermixing. Nonetheless, the amount of water permitted to Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's use of additional water as a result of a possible change to their permitted quantities. However, to compensate for this, the District has also included a special condition, (#26), which requires Hi Hat to log all 14 of its wells within the term of the permit, (7 years), which will require at least 2 wells be done each year. The cost of that action will be between $800 and $2500 per well. Another condition, (#31), requires Hi Hat to look into any complaint from adjacent property owners regarding adverse impacts due to water withdrawal, to report the results of its inquiry to the District, and to mitigate, as much as possible, all adverse impacts due to its withdrawal. Mr. Bishop claimed, and introduced evidence purporting to demonstrate, that many of the wells on the Hi Hat Ranch, which are covered by the permit applied for here, are no longer in use and have been abandoned. In response, Mr. Turner, who has been actively engaged in the ranch's operations for at least the past four years, indicates from his personal knowledge, that all 14 wells included in the permit applied for have been operated within the past two years, and all are capable of producing water. It is so found. Not all wells, however, have been operated at all times. Crop rotation and a varying need for groundwater has resulted in some wells not being used at some times. This is, of course, commonplace in agriculture and to be expected as a result of crop planning programs. Admittedly, an accurate figure for the amount of water which has been withdrawn from the 14 wells cannot be established because these wells do not have, and were not required to have, flow meters. Two of the wells were fitted with hour meters in January, 1989, but because the capacity of the pumps on those wells is variable, a precise estimate of volume pumped cannot be determined. The meters measured only the number of hours the pumps were in operation and not the amount of water passed through the pumps. Evidence was presented, however, to show that wells have been utilized at the ranch since the 1960's, and in 1977, some 14 years ago, following District implementation of a consumptive water use permit program, the ranch first applied for water withdrawal permits. These permits have been renewed as required and all water usage since the implementation of the program has been permitted. Turning to the reclaimed water supply, the delivery system, incorporating a program to pump reclaimed water from the treatment plant all the way back out to the ranch site, is subject to material failure and operator error, and either one can occur at any number of places along the system route. Each could result in interruption of the delivery of the reclaimed water to the ranch. The system is far more complex than would be the use of on-site wells for delivery of ground water. One two week shutdown in the system was occasioned by a major pipe failure as a result of pressure building up in the pipes. Were it not for the fact that a contractor was already at the ranch with replacement parts on hand to effect expeditious repair of the system, the shutdown could have lasted considerably longer than it did. This is not the only interruption, however. Several main line leaks and valve problems have caused the system to be shut down on several occasions for short periods of time. The filter system required for the water destined for the citrus area is problematical, and so far this area of the ranch has not received any reclaimed water in the 10 months the system has been in operation. Mr. Bishop argues that the wet weather holding pond is a solution to the reliability problems with the pipe line, but the pond has had problems of its own. Sand in the water, which comes from the holding pond, has been the primary difficulty in the filter system for the citrus area, and algae growth in that pond has the potential to create other filter problems. Delivery of the water from the pond is not accomplished by a gravity system, but instead, requires the use of pumps powered by an electric motor. In the event of a power failure, this source would be unavailable. Discounting all of the above, however, and assuming, arguendo, that all systems were in top operating condition, the fact remains that the delivery system from the pond to the distribution system is not adequate to supply the amount of water that would be necessary to have an effective freeze protection program. In any case, the reclaimed water supply is not the panacea for all water shortage problems experienced at Hi Hat Ranch. In the first place, the quality of the reclaimed water is generally lower than that of the groundwater which would come from wells on the ranch. Also, the City's treatment process does not remove from the water all the pollutants that are of concern to the farm operators. For one thing, total dissolved solids in the reclaimed water are considerably higher than in the ground water, and high dissolved solid levels can be harmful to citrus crops. In fact, the Institute of Food and Agricultural Sciences recommends that citrus irrigation water not exceed total dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl). Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged between 1200 and 1500 mpl. Though within recommended parameters, it was toward the high end. Further, reclaimed water is not totally interchangeable with ground water for all agricultural purposes. It cannot, by law, be applied to certain types of ground crops such as melons, nor can it be used for overhead citrus irrigation. There is also a restriction on the use of reclaimed water for pastures on which dairy cattle will be grazed. This all results in a restriction on the options available to the farmer who chooses to use reclaimed water in his irrigation plan. As a result, many farmers try not to use reclaimed water if they have access to adequate amounts of groundwater from on- site wells. Notwithstanding all the above, the parties agree that the use of reclaimed water for irrigation purposed is in the public interest. The District encourages it but nonetheless concedes that even with the availability of reclaimed water, a farmer should have access to wells on his property, in a standby capacity, as an alternative source of water to support his farming activities. Not only that, the agreement between the City and Hi Hat provides for Hi Hat to maintain its water use permit even while receiving reclaimed water from the City. Hi Hat is not the only farm operation with whom the City has negotiated in a effort to expand its wastewater distribution program. It has found in those negotiations, that most farm producers are not willing to rely totally on reclaimed water for all their irrigation needs, and it has concluded that were it mandatory that a farmer give up his on-site ground water withdrawals in order to utilize reclaimed water for a part of his needs, most would be reluctant to use it at all. This would seriously interfere with the City's ability to dispose of its surplus reclaimed water consistent with its policy. Even though Hi Hat's property lies within the Eastern Tampa Bay Water Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat because Hi Hat filed its application for permit, which was deemed complete, prior to the adoption of the rule. Nonetheless, water use officials agree that the proposed permit is consistent with the rule emphasis on the use and reuse of reclaimed water, and the District does not object to backup wells being permitted as supportive of the District's desire to keep ground water within the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No. 204387.03, within the limits of the authorized quantities as indicated in the intent to issue, subject to conditions contained therein; except that the permit be amended to show well No. 5 as a non-standby well, and to delete standby wells from the terms and requirements of Special Condition 22. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted Accepted and incorporated herein. Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 11. Accepted. - 15. Accepted and incorporated herein. Accepted. Accepted. & 19. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. She testified that Condition 28 of the permit provides this. Accepted. Accepted. Accepted and incorporated herein. Accepted. & 36. Accepted. Rejected as not supported by the evidence except that the method permitted was the method being used. - 40. Accepted. Ms. Jackson indicated she "assumed" some wells were drilled into the Florida aquifer. Rejected. Accepted as qualified by the comment, "depending on the respective potentiometric heads." - 47. Accepted. Accepted but incomplete. This is because they did not feel it was necessary under the circumstances. - 51. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. Redundant. - 61. Accepted. - 66. Accepted and incorporated herein. Accepted. More a restatement of testimony than a Finding of Fact Accepted and incorporated herein. & 71. Accepted and incorporated herein. - 74. Accepted. Accepted. First sentence accepted. Second portion rejected since cited case involves active wells versus standby, as here. The comparison made is accepted. The conclusion drawn as to validity is rejected. & 79. Accepted. FOR THE RESPONDENTS AND INTERVENOR: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 33. Accepted and incorporated herein. 34. - 37. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. - 42. Accepted and incorporated herein. Accepted and incorporated herein, & 45. Accepted. 46. & 47. Accepted and incorporated herein. COPIES FURNISHED: Wyatt S. Bishop 5153 Tucumcari Trail Sarasota, Florida 34241 Bram D.E. Canter, Esquire Haben, Culpepper, Dunbar & French, P.A. 306 N. Monroe Street Tallahassee, Florida 32301 Edward B. Helvenston, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara B. Levin, Esquire de la Parte & Gilbert 705 East Kennedy Blvd. Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue presented for decision in this case is whether Respondent, the Southwest Florida Water Management District (the "District"), should issue Water Use Permit ("WUP") No. 20005687.003 to Dr. Thomas E. Kelly, pursuant to the terms of the proposed permit issued on April 11, 2001.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioner Becky Ayech is a resident of Sarasota County and a citizen of the State of Florida. The District is a water management district in the State of Florida created pursuant to Section 373.069(1)(d) and (2)(d), Florida Statutes. The District is the governmental agency charged with the responsibility and authority to review and act upon water use permit applications, pursuant to Chapter 373, Part II, Florida Statutes, and Chapters 40D-1 and 40D-2, Florida Administrative Code. Dr. Thomas E. Kelly is the owner of the real property in Sarasota County on which Pop's Golf and Batting Center is located, and as such is recognized as the applicant for and holder of any WUP issued for the property. Pursuant to a 50- year lease with Dr. Kelly, Ralph Perna owns and operates Pop's Golf and Batting Center and is the person who would be responsible for day-to-day compliance with the terms of the WUP at issue. Neither Dr. Kelly nor Mr. Perna formally intervened in this proceeding. THE PROPOSED PERMIT The proposed permit is for irrigation and sanitary uses at a golf driving range and batting cage facility called Pop's Golf and Batting Center, on Fruitville Road in Sarasota County. The site leased by Mr. Perna comprises approximately 30 acres, of which the westward 15 acres is taken up by the Pop's facility. The eastern 15 acres is heavily wooded, overgrown with brush, and contains a five-acre lake. The majority of the 15 acres used by Pop's is taken up by the landing area for the driving range. Near the front of the facility are a tee box and putting green sown with Bermuda grass. This grassy area, about six-tenths of an acre, is the only part of the 30-acre property requiring irrigation, aside from some landscape plants in front of the business office. The landing area is not watered and is not even set up for irrigation. The Pop's facility is in a low-lying area historically prone to flooding. For this reason, the tee box, putting green, and business office are elevated about two and one-half feet higher than the landing area. This elevation also serves the esthetic purpose of allowing golfers to follow the flight of their drives and watch the balls land. The proposed WUP is a renewal of an existing permit. The existing permit is premised on the property's prior use for agriculture, and permits withdrawals of 34,000 gpd on an average annual basis and 99,000 gpd on a peak monthly basis. The renewal would authorize withdrawals of 1,700 gpd on an average annual basis and 4,400 gpd on a peak monthly basis, reductions of 95 percent and 96 percent, respectively. "Average annual" quantity is the total amount of water withdrawn over the course of one year. This quantity is divided by 365 to arrive at the allowable gallons per day. "Peak monthly" quantity is the amount of water allowed to be withdrawn during the driest month of the year. This quantity is divided by 30 to arrive at the allowable gallons per day. Pop's draws water from two wells on the property. A six-inch diameter well, designated District Identification No. 1 ("DID 1"), is used for irrigation of the tee box and putting green. A four-inch diameter well, designated District Identification No. 3 ("DID 3"), is used to supply water to the two restrooms at the facility. THE PERMIT CONDITIONS The proposed WUP includes the following basic information: the permittee's name and address; the permit number; the date the permit application was filed; the date the permit was issued; the expiration date of the proposed permit; the property location; the quantity of water to be permitted; the withdrawal locations; and the water use classification proposed pursuant to the District's permit application. The District's permit application provides the applicant with the following five choices regarding proposed water use: Public Supply; Industrial or Commercial; Recreation or Aesthetic; Mining or Dewatering; and Agriculture. The proposed permit in this case has been classified as Recreation or Aesthetic. The proposed WUP would allow the permittee to withdraw from DID 1 an average of 1,600 gpd, with a peak monthly withdrawal of 4,200 gpd, and to withdraw from DID 3 an average of 100 gpd, with a peak monthly withdrawal of 200 gpd. The proposed WUP contains four Special Conditions. Relevant to the issues raised in this proceeding, Special Condition No. 3 requires the permittee to incorporate best water management practices, to limit daytime irrigation to the greatest extent practicable, to implement a leak detection and repair program, to conduct a system-wide inspection of the irrigation system at least once per year, and to evaluate the feasibility of improving the efficiency of the current irrigation system. Special Condition No. 4 requires the permittee to submit a conservation plan no later than April 30, 2006. The plan must address potential on-site reuse of water and external sources of reuse water. The proposed WUP also contains 16 Standard Conditions. Standard Condition No. 2 reserves the District's right to modify or revoke the WUP following notice and a hearing, should the District determine that the permittee's use of the water is no longer reasonable and beneficial, consistent with the public interest, or if the water use interferes with an existing legal use of water. Standard Condition No. 3 provides that the permittee may not deviate from the terms of the WUP without the District's written approval. Standard Condition No. 4 provides that, if the District declares a water shortage pursuant to Chapter 40D-21, Florida Administrative Code, the District may alter, modify, or declare inactive all or any part of the proposed WUP as necessary to address the water shortage. Standard Condition No. 5 provides that the District will collect water samples from DIDs 1 and 3, or require the permittee to submit water samples to the District, if the District determines there is a potential for adverse impacts to water quality. Standard Condition No. 9 provides that the District may require the permittee to cease or reduce its withdrawals if water levels in aquifers fall below minimum levels established by the District. Standard Condition No. 11 provides that the District may establish special regulations for Water Use Caution Areas ("WUCAs"), and that the permit will be subject to such regulations upon notice and a reasonable period to come into compliance. Standard Condition No. 12 requires the permittee to install flow metering or other measuring devices to record withdrawal quantities, when the District deems it necessary to analyze impacts to the water resource or existing users. CONDITIONS FOR ISSUANCE OF PERMIT Generally, the miniscule withdrawals proposed by Pop's would not fall within the District's permitting authority, which mostly confines itself to withdrawals of 100,000 gpd or more. However, Rule 40D-2.041(1)(c), Florida Administrative Code, requires a permit for any withdrawal from a well having an outside diameter of six inches or more at the surface. DID 1 has an outside diameter of six inches. An applicant for a WUP must demonstrate that the proposed use of water is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances on both an individual and a cumulative basis that the proposed use of water satisfies the 14 specific conditions set forth in Rule 40D-2.301(1)(a)-(n), Florida Administrative Code, identified in the subheadings below. Necessary to Fulfill a Certain Reasonable Demand Pop's is open for business twelve hours per day. During the summer months, it averages 100 customers per day. The tee box and putting green at Pop's are heavily used. When golfers hit balls from the tee box, they make small gouges, or divots, in the Bermuda grass. These divots are later filled with sand, and the grass naturally grows over them. Irrigation is essential to the health of the Bermuda grass, allowing the application of fertilizer and chemicals to treat for pests and fungus. The tee box and putting green are watered as little as possible, because over-watering can itself lead to fungus problems with the Bermuda grass. The District uses an irrigation allocation computer program called AGMOD to determine reasonable average annual and peak monthly quantities for irrigation in an objective and consistent manner. Data on the pump capacity, soil type, the area to be irrigated, and its geographic location are input, and AGMOD allocates a quantity of water sufficient to irrigate for the driest 20 percent of the time, based on 75 years of historic rainfall data. The AGMOD program allows quantities for irrigation of the fairways of a typical golf course; however, Pop's does not have fairways and thus the proposed permit does not authorize any water for such irrigation. The District's expert, David Brown, credibly testified that the amounts allocated under this permit are conservative because the area to be irrigated is a high traffic area, because the irrigation methodology employed by Pop's ensures that 75 percent of the water withdrawn from DID 1 will get to the grass, because of the fertilizers and chemicals necessary to maintain and repair the grass, and because of the elevation of the area to be watered. Mr. Brown testified that the AGMOD model uses native soil types, not the fill used to elevate the tee box and putting green, and therefore the soil for the elevated areas will likely require more water and drain more quickly than AGMOD indicated. The quantities allocated for withdrawals from DID 3 on an average annual and peak monthly basis are necessary to fulfill the demand associated with the use of the two restrooms by Pop's employees and customers. In summary, the amounts of water authorized for withdrawal under the proposed permit are no more than necessary to fulfill a certain reasonable demand. Quantity/Quality Changes Adversely Impacting Resources The evidence at the hearing established that the operation of DIDs 1 and 3 pursuant to the terms of the proposed WUP will cause no quality or quantity changes adversely impacting the water resources. The proposed withdrawal amounts constitute a decrease of 95 percent on an average annual basis and of 96 percent on a peak monthly basis from the existing permit. The District reasonably presumes that decreases in permitted withdrawal amounts will not cause quantity or quality changes that will adversely impact the water resources. Nonetheless, Mr. Brown performed groundwater modeling to confirm that the District's presumption was correct in this case. The first step in model development is to study the geology at the site being studied. Mr. Brown looked at detailed information from surrounding WUPs and geographic logs to arrive at a "vertical" view of the stratigraphic column in place at Pop's, giving him an idea of which zones below Pop's produce water and which zones confine water and impede its movement between the producing units. Mr. Brown then looked to site-specific aquifer test information from other permits to give him an idea of the "horizontal" continuity of the system across the area under study. The hydrogeologic profile at Pop's contains five different aquifer production zones separated by confining units of clay or dense limestone. Moving downward from the surface, the production zones are the surficial aquifer, zones called Production Zone 2 ("PZ-2") and Production Zone 3 ("PZ- 3") within the intermediate aquifer, and the Suwannee limestone and Avon Park limestone layers within the Upper Floridan aquifer system. DID 3 has approximately 96 feet of casing and a total depth of approximately 195 feet. It draws water from PZ-2, the upper production zone of the intermediate aquifer. DID 1 was built before the District assumed regulation of well construction and consumptive water use; therefore, the District does not possess specific information as to its construction. Mr. Brown reviewed historical documents, including a 1930s report by the United States Geological Survey ("U.S.G.S.") about irrigation wells drilled in the location now occupied by Pop's. Mr. Brown's review led him to a reasonable conclusion that DID 1 has approximately 75 to 100 feet of casing and is drilled to a total depth of 600 to 700 feet below land surface. The District's water level measurements confirmed Mr. Brown's judgment, indicating that the well penetrates only through the Suwannee limestone formation in the Upper Floridan aquifer. His hydrogeological findings in place, Mr. Brown proceeded to perform a number of analyses using a five-layer groundwater model based on the "Mod-Flow EM" program developed by the U.S.G.S. to determine whether the withdrawals authorized by the proposed WUP would have any adverse impacts on water resources. The model's five layers simulated the five aquifer zones found in the area of Pop's. Mr. Brown performed simulations to predict the effect of the combined pumping of DID 1 and DID 3 at 1,700 gpd on a steady state basis and at 4,400 gpd for a period of 90 days. A "steady state" model assumes continuous pumping at the stated quantity forever. The scenario for pumping 4,400 gpd for 90 days is called a "transient" model, and simulates the effect of continuous pumping at the peak month quantity, without replenishment of the water source, for the stated period. Both the steady state and transient models used by Mr. Brown were conservative, in that it is unlikely that their scenarios would actually occur at Pop's. The modeling predicted that Pop's withdrawals would have no effect on the surficial aquifer or on the deep Avon Park limestone formation. Because DID 1 is likely to open to the PZ-2, PZ-3, and Suwannee limestone production zones, Mr. Brown analyzed the steady state and transient conditions for each zone. The greatest effect predicted by any of the modeling runs was a drawdown in water levels of approximately two-hundredths of a foot in the PZ-3 and Suwannee limestone zones. This drawdown would extend no farther than the boundary of Pop's property. All of the predicted drawdowns were smaller than the natural fluctuations in water levels caused by changes in barometric pressure. Thus, any possible effects of withdrawals at the quantities proposed in the WUP would be lost in the background noise of the natural water level fluctuations that occur in all confined aquifers. The water level or pressure within subterranean production zones is referred to as the "head." For water to move from one zone to another, there must be a difference in head between the zones. The evidence established that groundwater quality declines with depth at the Pop's site, but that the heads in the PZ-2, PZ-3, and Suwannee limestone production zones are essentially the same in that area. The similarity in heads means that there is no driving force to move water between the zones and thus no potential for adverse water quality changes caused by DID 1's being open to multiple production zones. In summary, the amounts of water authorized for withdrawal under the proposed permit will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. Adverse Environmental Impacts to Wetlands, Lakes, Streams, Estuaries, Fish and Wildlife, or Other Natural Resources Mr. Brown's model indicated there would be no drawdown from the surficial aquifer, where there would be the potential for damage to water related environmental features and/or the fish and wildlife using those features as habitat. Petitioner offered no evidence indicating that the proposed water use will cause adverse environmental impacts. Deviation from Water Levels or Rates of Flow The District has not established minimum flows or levels for the area including Pop's. Therefore, Rule 40D- 2.301(1)(d), Florida Administrative Code, is not applicable to this WUP. Utilization of Lowest Quality of Water Ninety percent of the water withdrawn from DID 1 will come from the Suwannee limestone formation and is highly mineralized and of lower quality than the water in PZ-2 or PZ- 3. DID 3 draws its water from PZ-2. As noted above, DID 3 provides water to the two restrooms on the premises of Pop's. Because its water is used in the public restrooms, DID 3 is considered a limited public supply well, the water from which must meet potable standards. Mr. Brown testified that, though PZ-2 provides water of higher quality than do the zones beneath it, that water only barely meets potable standards. Lower quality water than that obtained from PZ-2 would require extensive treatment to meet potable standards. Reuse or reclaimed water is unavailable to Pop's under any rational cost-benefit analysis. There is a reclaimed water transmission network in Sarasota County, but the nearest point of connection is more than one mile away from Pop's. The wetland lake on Pop's site is unsuitable because extensive land clearing, pipeline construction, and intensive filtration would be required to use its water. Such a project would not be technically or economically feasible for the small amount of water in question. The evidence establishes that Pop's will utilize the lowest quality water available. Saline Water Intrusion The evidence demonstrated that the proposed use will not significantly induce saline water intrusion. Saline water intrusion occurs in the Avon Park limestone formation. Withdrawals must cause a drawdown in the Avon Park formation to further induce saline water intrusion. DID 1 does not penetrate into the Avon Park formation. Mr. Brown's modeling indicated that the withdrawals allowed under the proposed WUP will not cause any drawdown in the Avon Park formation. Pollution of the Aquifer The proposed use will not cause pollution of the aquifer. As noted above, absent a difference in head or some driving force, there is no potential for water to be exchanged between the confined producing zones. Any small quantity that might be exchanged due to the pumping of the well would be removed by the same pumping. There is no potential for pollution of the aquifer by storm water moving through DID 1 or DID 3 because there is no head differential or driving force to move storm water down into the wells. The District's historic water level measurements indicated that during the rainy season, when the site is most likely to be inundated, water levels in the wells are 0.15 feet above land surface. The well structures extend at least one foot above ground level and are sealed with plates and gaskets. Adverse Impacts to Existing Off-site Land Uses The proposed use will not adversely impact off-site land uses. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider off-site impacts only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. Adverse Impacts to Existing Legal Withdrawals The proposed use will not adversely affect any existing legal withdrawals of water. The District's reasonable practice, when authorizing renewal of the permit for an existing well, is to consider adverse impacts to existing legal withdrawals only where the applicant seeks to increase withdrawal amounts. In this case, the applicant is requesting a substantial decrease in the amount of withdrawals allowed under the renewed WUP. As noted above, Mr. Brown's modeling indicated that any drawdowns caused by these withdrawals are so small as to be lost within the natural fluctuations of water levels in the aquifer, even at the edge of Pop's 30-acre site. Petitioner's well is more than ten miles away from the wells at Pop's. Utilization of Local Resources to Greatest Extent Practicable The proposed use of water will use local resources to the greatest extent practicable, because the water withdrawn pursuant to the permit will be used on the property where the withdrawal occurs. Water Conservation Measures The proposed use of water incorporates water conservation measures. Pop's uses a commercial irrigation system with low volume misters, spray tips and sprinkler heads, and a rain gauge that automatically shuts down the system if one-eighth to one-quarter inch of rain falls. Mr. Perna testified that the automatic shutdown system rarely has the opportunity to work, because he manually shuts down the system if the weather forecast calls for rain. Mr. Perna testified that the typical golf range irrigates from 30 to 45 minutes per sprinkler head. Pop's irrigates roughly eight minutes per head. Overwatering can cause fungus on the Bermuda grass, giving Pop's a practical incentive to minimize irrigation. Pop's irrigates only the high traffic areas of the tee box and putting green, not the landing area. In its Basis of Review, the District has adopted a water conservation plan for golf courses located in the Eastern Tampa Bay Water Use Caution Area ("WUCA"). Basis of Review 7.2, subsection 3.2. Pop's is located in the Eastern Tampa Bay WUCA, and has implemented the items that golf courses are required to address in their conservation plans. Reuse Measures Given the small total irrigated area and the efficiency of the irrigation methods employed by Pop's, there is no realistic opportunity to capture and reuse water on the site. There is no reuse water realistically available from other sources. Thus, Pop's incorporates reuse measures to the greatest extent practicable. Waste Given the reduction in permitted quantities and the limited scope of the irrigation, the proposed use will not cause waste. Otherwise Harmful to District Resources No evidence was presented that the use of this water by Pop's will otherwise harm the water resources of the District. PETITIONER'S EVIDENCE Petitioner testified on her own behalf and presented the testimony of Ellen Richardson. Ms. Richardson testified that she had once seen a sprinkler running at Pop's during a rainfall, though she conceded that it had just begun to rain when she saw it. Ms. Richardson also testified that she had more than once seen sprinklers running at Pop's during daylight hours. However, Mr. Brown testified that some daytime irrigation is permissible under the District's watering restrictions, where heat stress and applications of fertilizers and chemicals make daytime watering necessary. These conditions applied to Pop's. Petitioner's chief concern was with her own well. Since the late 1980s, she has experienced intermittent water outages. The District has repeatedly worked with Petitioner on her well problems, and Petitioner feels frustrated at the District's inability to solve them. However, the District's evidence established that Petitioner's problems with water levels in her own well could not possibly be caused or exacerbated by the withdrawals at Pop's, ten miles away. To the extent that the renewal of this WUP will result in drastic decreases in permitted withdrawals, Petitioner's position would be improved even accepting her theory that these withdrawals have some impact on her well. In her petition, Petitioner alleged that there were disputed issues of material fact as to eight of the fourteen permitting criteria discussed above. While she engaged in spirited cross-examination of the District's witnesses, Petitioner offered no affirmative evidence showing that the any of the conditions for issuance of permits were not met. Petitioner's chief attack was that Rule 40D- 2.301(1), Florida Administrative Code, requires "reasonable assurances" that the permittee will fulfill the listed conditions, and that the applicant here could not supply "reasonable assurances" because of his long history of failure to comply with the conditions of prior permits. As evidence, Petitioner offered the District's historic record of this permit, which indeed was replete with correspondence from the District requesting records related to pumpage and water quality, and apparent silence from Dr. Kelly in reply. However, the record also explains that the failure to provide data was not the result of obduracy, but because farming had ceased on the property. When the less water intensive use of the driving range commenced approximately nine years ago, the owner ceased monitoring activities. The District, under the impression that farming was still taking place on the property, continued to request pumpage and water quality data for several years after the conversion. It appears from the record that Dr. Kelly, an absentee landlord, simply did not bother to respond. Dr. Kelly's past discourtesy does not rise to the level of calling into question the reasonable assurances provided in this permit renewal application, particularly where the lessee, Mr. Perna, has every reason to ensure that the conditions of the WUP are fulfilled. The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the permit renewal application. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why the permit renewal application should not be granted. In particular, Petitioner raised an important policy issue as to whether an applicant's history of failure to comply with permit conditions should be considered by the District in assessing the reasonableness of the applicant's assurances of future compliance. The District contended that the applicant's compliance history is irrelevant. While the District ultimately prevailed on the substantive issue, its procedural claim of irrelevance was rejected, and Petitioner was allowed to attempt to prove her contention as to Dr. Kelly's noncompliance. It is not found that Petitioner's litigation of this claim was frivolous.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order determining that Dr. Thomas E. Kelly has satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of water use permits, and that the District issue Water Use Permit No. 20005687.003 to Dr. Thomas E. Kelly. DONE AND ENTERED this 27th day of November, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings 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 this 27th day of November, 2001. COPIES FURNISHED: Becky Ayech 421 Verna Road Sarasota, Florida 34240 Jack R. Pepper, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether the Southwest Florida Water Management District proved that Alan R. Behrens signed a pleading, motion, or other paper in this proceeding for an “improper purpose,” and, if so, whether sanctions should be imposed pursuant to Section 120.569(2)(e), Florida Statutes?
Findings Of Fact The Parties Alan R. Behrens has resided and owned property at 4740 Southwest Armadillo Trail, Arcadia, DeSoto County, Florida, since 1985. There is a two-inch free-flowing artesian well used for domestic purposes on this property. Mr. Behrens’ well is approximately 150 feet deep and draws water from the Intermediate aquifer. The well currently has no pumping mechanism, and Mr. Behrens relies on an unaided artesian flow to produce water, which at times is inadequate. In prior administrative cases and the case involving Has-Ben Groves, Mr. Behrens is concerned that the withdrawal of water in the amounts requested by others from areas near his property will impair his ability to draw adequate amounts of water from his well. Mr. Behrens stated that his purpose in challenging the Has-Ben Groves WUP “is to receive assurances that any proposed use is not going to adversely impact [his] well. That’s [his] general biggest, main goal.” He feels that he did not receive assurances from the District; therefore, his only option was to request a hearing. The Southwest Florida Water Management District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The District has the statutory duty to review and approve or deny applications requesting consumptive water use permits. The Has-Ben Groves WUP Application On January 27, 2003, the District issued a notice of final agency action for approval of Water Use General Permit No. 20012410.000 issued to Has-Ben Groves. The WUP authorized annual average groundwater withdrawals of 31,100 gallons per day (gpd) to be used for irrigation of Has-Ben Groves’ 40-acre citrus grove. (Peak monthly withdrawals of 254,300 gpd and withdrawals for crop protection at 1,015,200 gpd were authorized.) Tomlinson previously owned the Has-Ben Groves’ 40 acres. The District previously permitted the well on the Has-Ben Groves 40 acres when Tomlinson owned the property. The Tomlinson well was previously permitted for 77,000 gpd on an annual basis, but the permit expired. Thus, Has-Ben Groves applied for a new WUP. The Has-Ben Groves permitted well site is located in Hardee County and is approximately 16 miles from Mr. Behrens’ artesian well in DeSoto County, and is expected to draw approximately 94 percent of its water from the Upper Floridan aquifer. Did Mr. Behrens sign a pleading, motion,or other paper for an improper purpose? On January 20, 2003, Mr. Behrens, by letter, asked the District to be advised of any agency action regarding five WUP applications, including the Has-Ben Groves application. In this letter, Mr. Behrens also requested, what he characterized as “public information,” “what the predicted drawdown to the intermediate and Floridan aquifers are.” He inquired further: “Please make sure the hydrologist includes this information. I have previously asked for this basic information; please do not force me to take legal action against SWFMD per the Sunshine law & other public information laws.” (Emphasis in original.) Mr. Behrens was copied with the District’s “Final Agency Action Transmittal Letter” sent to Has-Ben Groves on January 27, 2003. According to Mr. Behrens, “legal action” meant the filing of a petition requesting an administrative hearing. He felt that it was his only option to receive information and assurances. In particular, Mr. Behrens wanted the District to create and provide him with drawdown contours and modeling even if the District believed it was unnecessary. See Endnote 1. By letter dated January 29, 2003, the District, by Pamela A. Gifford, CLA, Office of General Counsel, responded to Mr. Behrens’ request for ‘predicted drawdown’ information and stated in part: “First, please be advised, the District does not prepare ‘predicted drawdown’ for all water use permits. Second, to ask for ‘predicted drawdown’ for permits, you are making a pubic records request. The District does not accept anticipatory public record requests. In other words, when the District receives a public records request, it will search for existing records responsive to the request as of the date of the public records request. . . . Third, the District will not create a record to respond to a public records request. If a ‘predicted drawdown’ exists, it will be provided to you, if it does not, it will not be created to answer your request.”1 By letter dated January 31, 2003, Mr. Behrens responded to the District’s January 29, 2003, letter referred to above and expressed his understanding that he could “expect the results of drawdown modeling to be included in Notices of Agency Action that [he] receive from the District.” Mr. Behrens requested the name of the District office and the hydrologist who reviewed the Has-Ben Groves WUP application; the location of the file; a statement that it was “apparently a new withdrawal”; a request to identify the amount of water coming from the Intermediate and Floridan aquifers; a query as to why the withdrawal would “be cased to only a depth of 120 feet; won’t this mean that much of the water will be drawn from the intermediate?” Mr. Behrens also requested “a copy of the drawdown modeling results (map).” Mr. Behrens advised that it was “very important that new groundwater withdrawals do not lower [his] well level further, because [he is] relying completely on artesian free-flowing pressure; every inch of level reduction creates further hardship for [him].” (During his deposition, Mr. Behrens felt that the District could produce the information on a “voluntary” basis in order to give him “assurances up front.”) By letter dated February 10, 2003, the District, by Ms. Gifford, responded to Mr. Behrens’ January 31, 2003, letter and advised him “that drawdown modeling will not be included in Notices of Agency Action that you receive from the District. The only way that you will receive the drawdown modeling is if the District has records related to the modeling at the time you make a specific public records request for same. For example, if you make a public records request today for drawdown modeling, the District will only provide records to you that are in our files as of today. You would have to make a subsequent public records request to get any records that were received or created by the District after today’s date.” (Emphasis in original.) Ms. Gifford also advised Mr. Behrens that he was being provided with “copies of documents that are responsive to [his] public records request dated January 31, 2003.” Mr. Behrens was provided with a copy of the Has-Ben Groves General Water Use Permit Application which indicated, in part, that the application was “new” as opposed to a “renewal” or “modification”; the location of the well site; that Has-Ben Groves intended to irrigate 40 acres for citrus; and that the construction date of the well was in “1960.” The word “existing” is written on the line describing, in part, the casing diameter, depth, and pump capacity. See Finding of Fact The name “Phillippi” is handwritten on page one of the application. (Michael Phillippi is a professional geologist and employed with the District for over nine years. He had a pre- application telephone conversation with the applicant for the Has-Ben Groves WUP.) A “Water Use Permit Evaluation Worksheet” was also enclosed which included, among other information, the names “Lucille” and “Deborah” and the initials of two persons. The record does not indicate that Mr. Behrens followed up with the District regarding the Has-Ben Groves application after receiving the District’s February 10, 2003, letter and enclosures. On February 19, 2003, Mr. Behrens filed a Petition for Formal Hearing challenging the District’s preliminary decision to approve the WUP. The District determined that the Petition was timely filed, but not in substantial compliance with the requirements of Section 120.569(2)(c), Florida Statutes, and Florida Administrative Code Rule 28-106.201(2), governing the initiation of administrative proceedings. The District issued an Order of Dismissal Without Prejudice on February 27, 2003. On March 12, 2003, Mr. Behrens filed an Amended Petition for Formal Hearing. Mr. Behrens alleged that the withdrawal to be authorized by the WUP “would use huge quantities of water from the intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation”; is “very close” to Mr. Behrens’ “property and well”; and the “cone of depression in the Intermediate aquifer that would be caused by the new use will cause a reduction in Petitioner’s water level and pressure and impair the ability of his well to produce water.” (Mr. Behrens also alleged that “[t]he proposed well would be eight inches in diameter, 920 feet deep, and cased to only 120 feet.” See Finding of Fact 15.) Mr. Behrens also alleged that the District refused to provide certain information, such as predicted drawdown to area wells. He also raised numerous disputed issues of material fact. On May 23, 2003, the District deposed Mr. Behrens. During his deposition, Mr. Behrens was asked to identify all facts and documents or sources of information he relied on in making the allegations in the Amended Petition. Mr. Behrens testified that the challenged water use withdrawal “seems like a very excessive amount”; “is [c]lose enough to have an impact on [his] well”; “is going to have a drawdown, is going to have an impact on the aquifer” and he has “a well on the aquifer”; that “these wells are going to have a drawdown and they’re going to draw down [his] well”; and that his position, that the Has-Ben Groves well will have a drawdown impact on his well, is based upon “[s]cience and facts and common sense” and “the evidence is self-evident.” Mr. Behrens has “done no studies.” Rather, he relies on information, such as the documents he introduced into evidence and his knowledge about the area and the District, to support the allegations in the Petition and Amended Petition. See, e.g., Findings of Fact 22-23. He does not have enough money to hire experts. He relies on the District’s hydrologists for the information he requests and for assurances. Yet, Mr. Behrens did not contact any District hydrologist to discuss his concerns before he filed the Petition and Amended Petition. See also Findings of Fact 26-28. On June 17, 2003, Mr. Behrens responded to the District’s Interrogatories, which requested Mr. Behrens to identify all facts he relied upon in making his assertions, including all documents prepared or reviewed in connection with such assertions. Mr. Behrens stated that no specific documents were prepared or reviewed in connection with his assertions made in paragraph 6 of the Amended Petition, and that the assertions in paragraph 6 were “pure truth – there’s no need to go searching to prove the obvious!” (Paragraph 6 of the Amended Petition alleged: “The proposed new groundwater withdrawal would use huge quantities of water from the Intermediate aquifer, even though water from the Floridan aquifer is completely suitable for citrus irrigation.”) During the final hearing, Mr. Behrens claimed that prior to filing his Petition, he relied on his experience and the information he maintains regarding the District’s identification of water use problems, and the District’s March 2000 Horse Creek Draft Resource Evaluation Report, the “Water Resources in Jeopardy” report published during the early 1990’s, and the 1992 Recommended Order in Alan R. Behrens, et al. v. Consolidated Minerals, Inc. and Southwest Florida Water Management District, et al., Case Nos. 92-0953-92-0957, 1993 WL 944120 (DOAH April 20, 1993; SWFWMD Nov. 30, 1994), in which Hearing Officer Daniel M. Kilbride found that Mr. Behrens was substantially affected by the District’s then proposed renewal and modification of an existing WUP held by Consolidated Minerals. 1993 WL 944120, at *4. (In interrogatory responses, Mr. Behrens also identified a 1986 potentiometric surface map of the Intermediate aquifer, among other maps he might identify.) These documents do not provide information relevant to whether the challenged Has-Ben Groves water withdrawal meets the conditions for issuance of a WUP or would lead a reasonable person to allege that the challenged Has-Ben Groves water use and well would have an adverse impact on Mr. Behrens’ use of his well. Before filing his initial Petition and during the interval before he filed his Amended Petition, Mr. Behrens did not contact or speak to District staff who reviewed the Has-Ben Groves WUP application or District staff in the Bartow Service Office (the District service office responsible for permitting matters in Hardee County) to obtain information concerning the Has-Ben Groves permit application or to discuss his concerns regarding whether the proposed water use to be authorized by the WUP would adversely affect his well. But see Finding of Fact 13, which indicates that on January 31, 2003, Mr. Behrens posed several questions to the District, prior to filing his Petition, which apparently were left unanswered. It appears Mr. Behrens did not pursue this inquiry until he served the District with Interrogatories on May 29, 2003. Mr. Behrens did not review the District’s “work file” after filing his Petition. In his Proposed Final Order (PFO), Mr. Behrens provided a detailed chronology and analysis of the factors he considered that caused him to file prior challenges to District action and his challenge to the District’s intent to approve the Has-Ben Groves WUP. He has mistrusted the District over time and has had little faith that the District understands his “unique circumstance” and will protect his well from adverse impacts resulting from the issuance of WUPs. See, e.g., (T. 95- 96, 98, 100.) He notes in his PFO that it was not until the Has-Ben Groves case that he “started to have trust in the District staff’s reliance on regional well monitoring data (as its sole source of cumulative impact analysis).” According to Mr. Behrens, the District provided him with information during discovery from which he derived reasonable assurances. He also felt that based on his experience, he “did not contact the permit reviewers in this matter because, from experience, he knew he could not trust them to provide the necessary assurances with a few comments over the telephone.” Yet, because of his financial inability to hire experts, Mr. Behrens relies on the expertise of the District’s hydrologists for assurance that his well will not be adversely impacted. See, e.g., (T. 112) (District Exhibit 13, pp. 41-42, 55, 58-61.) Stated otherwise, Mr. Behrens wanted the District staff to provide him with proof of reasonable assurance and he filed the Petition and Amended Petition because he felt he did not receive appropriate proof. If this final hearing went forward, his intent was to ask questions of the District’s hydrologists regarding many of the documents in his possession and to ask “District staff, under oath, about specific matters related to the protection of his well and the intermediate aquifer, in general,” presumably as he had done in the Basso and Boran cases, for example. See, e.g. (District Exhibit 13, p. 59-60.) Then, the ALJ, after hearing all of evidence, would decide whether reasonable assurance was provided. Prior to and after Mr. Behrens filed his Amended Petition, the District maintained Regional Observation and Monitoring Program (ROMP) wells that provide cumulative monitoring information concerning the Intermediate and Floridan aquifer water levels throughout the District. ROMP well data are available to the public upon request. (In response to a question posed by Mr. Behrens during the final hearing, Mr. Balser stated that ROMP well data do not give absolute assurance or reflect “[e]xactly what is happening in the geology under [Mr. Behrens] property.” Mr. Balser stated that he “would have to do testing of [his] property. But this is the best guess we can make looking at it from a regional view.”) It is more than a fair inference that Mr. Behrens was familiar with ROMP well data and their application in specific cases as a result of his participation in prior administrative cases. See pp. 4-5, supra. He did not request ROMP well data available from the District prior to filing his Petition and Amended Petition, although he asked for the quantity of groundwater which was expected to be withdrawn from the Intermediate and Floridan aquifers. See Conclusions of Law 48- 50. District WUP information and other records are available for public inspection, including the use and permitting history of the water withdrawal challenged by Mr. Behrens in this proceeding. If Mr. Behrens had inquired of the District prior to filing his Petition and Amended Petition, Mr. Behrens could have learned that the well on the Has-Ben Groves property had been in existence as early as the 1960’s for citrus irrigation, was first permitted around 1974, had previously been authorized by the District for withdrawals of as much as 77,000 gpd, was expected to draw approximately 94 percent of its water from the Upper Floridan aquifer, and there was no reasonable basis to conclude that withdrawals of 31,100 gpd from the Has-Ben Groves well would cause any adverse impact to his well, which draws water from the Intermediate aquifer. Stated otherwise, at the time he filed his Petition and Amended Petition, Mr. Behrens had no reasonable factual basis to allege that withdrawals of 31,100 gpd from the Has-Ben Groves’ well, located approximately 16 miles from his well, would have an adverse impact on his use of water from his well. (An applicant for a WUP is required to provide, in part, reasonable assurance that the water use “[w]ill not adversely impact an existing legal withdrawal.” Fla. Admin. Code R. 40D- 2.301(1)(i).) On June 30, 2003, Mr. Behrens filed a “Notice of Voluntary Dismissal” and responded, in part, to the District’s Motion for Summary Recommended Order, but not the District’s request for attorney’s fees and costs. Mr. Behrens stated that he withdrew his Amended Petition because he obtained information that he did not have when he filed his Amended Petition and that addressed his concerns about impacts to his well. He claimed, in part, that being informed of the District’s plan to set minimum levels for the Intermediate aquifer had allayed his fears that he would be without an artesian free-flowing water supply. However, the challenged WUP did not address or involve the setting of minimum flow levels. Based on the foregoing, Mr. Behrens did not make a reasonable inquiry regarding the facts and applicable law. Using an objective standard, an ordinary person standing in Mr. Behrens’ shoes would not have prosecuted this claim if a reasonable inquiry had been conducted. Stated otherwise, Mr. Behrens did not have a “reasonably clear legal justification” to proceed based on his limited inquiry. Mr. Behrens signed the Petition and Amended Petition for an “improper purpose.” The District’s Request for Sanctions The District proved that its lawyers expended approximately 98.8 hours in responding to the challenge brought by Mr. Behrens and that the District incurred $426.25 in costs. An hourly rate of $125.00 per hour is a reasonable rate. The hours expended by District lawyers were reasonable. The costs incurred were reasonable. The District requests that sanctions be imposed in the amount of $12,350.00 for attorney's fees and $426.25 in costs. For the reasons more fully stated in the Conclusions of Law, based on the totality of the facts presented, the imposition of a sanction against Mr. Behrens in the amount of $500.00 (for costs and a small portion of fees) is appropriate.
The Issue Whether General Water Use Permit (WUP) Number 20012185.000 (Permit) meets the conditions for issuance as established in Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, and should be issued to Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc.
Findings Of Fact The Parties DCAP is not-for-profit corporation incorporated in the State of Florida. Behrens is the President of DCAP. See also Findings of Fact 63-77. Farmland Hydro is a Delaware Limited Partnership authorized to transact business in Florida, and is the owner of the property leased by Basso/Redland, which is the subject of this WUP. Frank T. Basso, Jr., is a third generation farmer, who operates as Redland Growers Exchange, and seeks a General WUP to authorize groundwater withdrawals for crop irrigation. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The Proposed Water Use An Application for a General WUP was submitted by Farmland Hydro and Basso, as co-applicants, and received by the District on April 11, 2001. After receipt of additional information, the Application was deemed complete on October 22, 2001. The Applicants seek a General WUP to authorize a new water use for the irrigation of 140 acres for the production of both Spring and Fall row crops, using a seepage-with-mulch irrigation system.1 Basso plans to grow tomatoes and/or peppers in the Spring, and squash and/or cucumbers in the Fall. Crop planting for both seasons will be phased-in over a one-month period. Water allocation quantities are calculated on a weekly phase-in basis of approximately 35 acres for each planting date. The total time that the parcel will be in use for farming, to include planting and harvesting for each crop, is approximately six months per year. The subject parcel is part of a 250-acre tract known as the Brushy Creek Tract and is located in Hardee County approximately two miles south of the town of Ona; approximately two miles south of the intersection of U.S. Highway 64 and County Road 663; and is within the Southern Water Use Caution Area (SWUCA). The subject parcel currently does not contain a water well. The Brushy Creek Tract is a larger parcel of approximately 1,230 acres leased from Farmland Hydro by Redland and also by Parker Farms for cattle grazing, farming, and hunting. The subject parcel is used for cattle grazing and is surrounded by land owned by Farmland Hydro and used for either cattle grazing or agricultural row crops. Farmland Hydro also operates an additional approximately 1,941 acres of property near the subject parcel, which is used for citrus groves. Farmland Hydro has consumptive WUPs for this property. The closest existing legal user to the proposed Basso well site is another well on the Farmland Hydro property. As is generally done with vegetable crop production in Florida, vegetable crops grown on the Farmland Hydro property are grown in rotation with pasture, and have been rotated in this manner for many years. Typically, farmers have farmed a piece of land for one, two or three years and then, to avoid the buildup of insects and diseases, have allowed the land to revert to pasture and have moved on to another field for crop production. The subject parcel for which the WUP is being sought will be similarly treated. Crop rotation is an important agricultural best management practice that is used to address pest management, soil conservation, and maximizing nutrients for obtaining favorable crop production. Soil conservation is important to Basso, notwithstanding that there is a response in the Application that no approved Soil Conservation Service plan exists for the operation included in the Application. If the WUP is issued and the subject parcel is placed into crop production, another parcel of land will be taken out of crop production by Basso, resulting in the discontinuation of another permitted well. As a result, the issuance of this WUP will not result in a "water use change." Determination of Reasonable Demand/Allocated Quantities In determining whether a proposed water use is reasonable-beneficial and in the public interest, the District calculates the appropriate permit quantities for the particular water use, which is a function of demonstrated need, or demand for water; efficiency of the water treatment and distribution systems; whether water is sold or transferred to other entities; whether acceptable water can be acquired from lower quality sources; and whether conservation practices are employed. District Basis of Review (BOR), page B3-1. The reasonable need for agricultural water use is generally composed of one or more demand components, depending upon the specific agricultural use. "Typically, the reasonable need for irrigation water uses is equal to the supplemental crop requirement divided by the system efficiency or the system design capacity, whichever is less." "The supplemental crop requirement is the amount of water needed for a particular crop beyond the amount of water provided by effective rainfall." The supplemental crop requirement is generally determined by using the Agricultural Water Use Calculation Program (AGMOD) Version 2.1, which is based on the modified Blaney-Criddle method. This program takes into account site specific information such as crop type, growing period, evapotranspiration rate, soil type, rainfall, irrigation method and number of irrigated areas. "In most cases, the supplemental irrigation requirement is determined for a 2 in 10-year drought condition." The AGMOD program determines an inch-application rate which, when applied to the number of acres to be irrigated, results in a calculation of total annual average and peak monthly quantities for the proposed water use. District BOR, pages B3-4 and 3-5. See also District Water Use Design Aids, pages C4-1 through C4-7. In determining the allocated quantities, or reasonable demand for water, the District seeks to avoid both over- allocating water and under-allocating water for the specific crop intended, to ensure that the permitted amount is sufficient for the "2 in 10-year drought condition." Consequently, the allocated quantities arrived at by District staff through use of the AGMOD methodology may be different from the quantities indicated on an applicant's initial application, which are generally estimated without benefit of an agricultural water use calculation program. The AGMOD program was used to calculate water use quantities for the proposed water use. The allocated quantities for Basso's proposed use are 454,000 gallons per day (gpd) on an annual average basis and 1,241,000 gpd, as a peak month quantity. No quantities were requested or allocated for crop protection. See Finding of Fact 52. Modeling for Simulated Impacts As part of the application review process, the District evaluates potential impacts to existing legal uses of water, the water resources and environmental features that may result from the proposed groundwater withdrawals. To assist in the review process, analytical and numerical models, which incorporate best available hydrogeologic parameters for the area being considered for a permit, are used to simulate drawdowns for the withdrawal of the proposed quantities. The results of these simulations are used in the evaluation of potential impacts to assess whether the application meets the conditions for issuance. The District undertook simulation modeling of the potential effects of the proposed water withdrawals to be authorized by the permit. The allocated quantities were entered into the MODFLOW 387 groundwater flow model, which is a three- layer model developed by the U.S. Geological Survey and is the generally accepted model for this purpose. Model layers were set up to represent the surficial, intermediate, and Upper Floridan aquifers. (The Applicants seek to pump water solely from the Upper Floridan Aquifer.) There are limitations to the model in that the model assumes a homogeneous isotropic aquifer, with no preferred flow direction. In actuality, there is variability in the geology of the area. Modeling is intended to serve as a screening tool for assessing localized impacts anticipated from a proposed water use and is based upon the best available information. As distance from the proposed withdrawal site increases, the reliability of the modeling decreases, due to the variability in the geology and other parameters or boundary conditions that can affect the model. Use of the MODFLOW groundwater model allows the District to look at potential impacts at the site, and in the proximity of the site, and assists the District in assessing possible cumulative impacts associated with a proposed use. To assist in assessing potential impacts from the proposed use, a Peak Month modeling simulation was undertaken by the District, which simulates the effect of pumping the proposed Peak Month withdrawal rate of 1,241,000 gpd for 90 consecutive days, with no recharge to the aquifer systems. The model essentially presents a worst case scenario that is a more severe prediction than what is actually likely to occur from the permitted use under normal conditions. Simulating the period of greatest demand on the hydrologic system is likely to provide maximum protection to existing legal water users and the water resources. The Peak Month simulation undertaken by the District predicts drawdowns in the potentiometric surface of the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site; less than 1.4 feet at the nearest property boundary (approximately 1,250 feet from the proposed withdrawal site); and less than 1.2 feet at the nearest existing legal user (a Farmland Hydro well approximately 3,500 feet from the proposed withdrawal site). These numbers did not raise a concern for District staff. ("Potentiometric surface" is "a surface defined by the level to which water rises in an open pipe that is constructed into or all the way through an artesian aquifer. This is measured in feet relative to NGVD or sea level. The level to which water rises inside this open pipe is a function of the pressures on the water in the artesian aquifer." District BOR, page B-xii.) The Peak Month simulation predicts drawdowns in the intermediate aquifer of approximately 0.9 feet at the proposed withdrawal site, and less than 0.9 feet at the property boundary, and at the nearest existing legal user. The Peak Month simulation predicts drawdowns in the water level of the surficial aquifer (water table) of approximately 0.01 feet or less at the proposed withdrawal site, property boundary and nearest existing legal user. Based upon the Peak Month simulations, the District reasonably determined that further cumulative impact modeling was not necessary in order to assess localized cumulative impacts resulting from the proposed use. To assess regional cumulative impacts, the District evaluated Regional Observation Monitoring Program (ROMP) data and found no significant trends in withdrawals in recent years, other than a slight decline attributed to the recent drought. Conditions of Issuance of the Proposed Permit In order to obtain a water use permit, an applicant must establish that the proposed use of water is a reasonable- beneficial use, will not interfere with any existing legal use of water, and is consistent with the public interest, by providing reasonable assurance, on both an individual and cumulative basis, that the water use meets the conditions for issuance as specified in Section 373.223(1), Florida Statutes, and Rule 40D-2.301, Florida Administrative Code. A permit must be obtained from the District prior to withdrawing water, where the withdrawal is from a well having an outside diameter of six inches or more at land surface, where the annual average withdrawal from all sources is 100,000 gpd or greater, or where the total combined withdrawal capacity from all sources is greater than or equal to 1 mgd. The proposed water use falls within these parameters. Rule 40D-2.041(1)(b) and (c), Florida Administrative Code. The quantities allocated for the proposed use have been determined by the District to be necessary to fulfill a certain reasonable demand, for the reasons specified herein. To assist in assessing impacts, the District utilizes a network of ROMP wells to obtain basic groundwater monitoring data over time and to help characterize the lithology, stratigraphy, aquifer depths, water levels and, in some cases, water quality for the various water resources. Data obtained from the ROMP and other wells is compiled to ascertain aquifer characteristics within the District and is also integrated into the District's modeling efforts pertaining to proposed water uses. ROMP well No. 31 is located just off the northeast corner of the Basso site. Having a ROMP well adjacent to the Basso site increases confidence in the specific geological information being used in the groundwater model to assess potential impacts from the proposed uses. ROMP well No. 17 is located approximately 1/2 mile from DCAP member Behren's well. Data from both wells were considered in assessing potential impacts from the proposed water use. Based on available information, the possible sources of groundwater for the proposed use at the Basso site are the surficial aquifer, intermediate aquifer, and the Upper Floridan Aquifer systems. To ensure sufficient quantities of water for the proposed use and to avoid potential impacts to environmental features, such as wetlands and surface waters, the District will require the proposed use to limit withdrawals to solely the Upper Floridan Aquifer. By examining stratigraphic cross sectional information generated from the ROMP wells, particularly ROMP No. 31 well, which is in close proximity to the Basso site, District staff were able to determine, with reasonable certainty, the approximate depths of the aquifers at the Basso well site. To ensure that the well will be open solely to the Upper Floridan Aquifer, the permit requires the Basso well to have a minimum of 400 feet of casing, with an estimated well depth of 1,000 feet. Based upon available information concerning the construction of other wells in the vicinity of the proposed Basso well, the District is reasonably assured that a well cased for a minimum of 400 feet will draw water only from the Upper Floridan Aquifer and will minimize the potential for water to move between the aquifers through the well. The well construction requirements imposed for Basso's well are in line with the best available stratigraphic information and with known construction of wells in the area. By casing the well to a depth of 400 feet and due to the extremely low leakage of the intermediate confining unit, the intermediate and surficial aquifers will be buffered from impacts associated with the proposed use. The District will deny a water use permit application if the proposed withdrawal of water, together with other withdrawals, would cause an unmitigated adverse impact on a legal water withdrawal existing at the time of the application. The District considers an adverse impact "to occur when the requested withdrawal would impair the withdrawal capacity of an existing legal withdrawal to a degree that the existing withdrawal would require modification or replacement to obtain the water it was originally designed to obtain." District BOR, page B4-14. Based upon an assessment of individual and cumulative regional information, there are no existing legal uses of water that will be adversely impacted as a result of the proposed withdrawals. Based upon an assessment of individual and cumulative regional information, no quantity or quality changes that adversely impact the water resources, including both surface and groundwaters, are anticipated from the proposed withdrawals. The District requires that consideration be given to the lowest water quality available, which is acceptable for the proposed use. Lower quality water includes reclaimed water, collected stormwater, recovered agricultural tailwater, saline water or other sources. District BOR, page B4-12. For the proposed water use, there is no viable lower quality water source and no reclaimed water available near the site to use as an alternative to groundwater pumping. The Applicants are proposing to use the lowest quality water that is available. There are no known concerns regarding the quality of water in the Upper Floridan Aquifer at this location in Hardee County. Restricting the proposed water use to the Upper Floridan Aquifer will not cause water quality concerns or result in pollution to any of the aquifers. Simulated drawdowns to the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site, less than 1.4 feet at the nearest property boundary, and less than 1.2 feet at the nearest permitted well, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the intermediate aquifer of 0.9 feet at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the surficial aquifer of 0.01 feet or less at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, constitute a nearly undetectable impact to the surficial aquifer, which is not an adverse impact. The modeling simulations demonstrate that the proposed withdrawals will have no significant effect on the surficial aquifer and, therefore, will not cause adverse impacts to environmental features such as wetlands, lakes, streams, fish and wildlife, or other natural resources. None of the simulated drawdowns are considered to be predictions of adverse impacts, not even in the localized vicinity of the well site. Mr. Jackson explained that because the localized modeling simulations were small or insignificant and showed no adverse impacts, cumulative modeling is not considered necessary. Reasonable assurance on a cumulative basis is determined by assessing the potential localized impacts in conjunction with existing cumulative data for the region, such as the available ROMP data and hydrographs, which depict the existing regional condition, taking into account, on a cumulative basis, all existing uses as well as rainfall conditions and climate. Based on an assessment of the cumulative data and the modeling for individualized impacts, and applying professional judgment, District staff reasonably concluded that the proposed water use presents no concerns that it will cause, on either an individual or a cumulative basis, adverse impacts to the water resource or existing legal uses. Minimum flows and levels have not been established by the District for the area where the proposed use is located. (The parties stipulated that the District has not established minimum flows and levels pursuant to Section 373.042, Florida Statutes, for the Southern Water Use Caution Area (SWUCA)). Therefore, Rule 40D-2.301(1)(d), Florida Administrative Code, (requirements for minimum flows and levels), is not applicable to the proposed permit. The proposed use presents no concerns for saline water intrusion. The proposed use raises no concerns regarding causing pollution to the aquifer. There are no offsite land uses that will be adversely impacted as a result of this permit. Basso currently uses best management practices for water conservation in his ongoing farming operations, and intends to use such practices with the new farming operation authorized under the permit. In keeping with such practices, irrigation is stopped when the water reaches the end of the watering ditch. Basso uses seepage irrigation and tries to regulate the ditches so that there is a minimum, if no, runoff. Also, a watering cycle generally lasts from three to seven days before irrigation has to be resumed. Any runoff goes into "filtering ponds, before reaching ditches or creeks" in its raw content. Basso does not intend to farm during months of likely frost so no separate allocation for frost/freeze protection was requested or needed. Given these irrigation practices, water is not reasonably expected to be wasted. All necessary and feasible agricultural water conservation activities will be implemented upon issuance of the WUP. In addition, Specific Condition No. 3 of the proposed WUP requires the incorporation of best water management practices in all irrigation practices. The proposed use presents no concerns that it will otherwise be harmful to the water resource. The Applicants have met all the requirements for issuance of a WUP. Southern Water Use Caution Area The proposed water use site is located within the SWUCA. The District established the SWUCA as a means of addressing on a regional scale concerns about long-term impacts to the water resource. Water use caution areas were created in recognition of regional water concerns. There have been drought conditions in the area which have caused reduced aquifer levels. The proposed water use site is not within the "Most Impacted Area" (MIA), which is located approximately 18 miles to the west of the site in Manatee County, nor within the "East Tampa Bay Water Use Cautionary Area" (ETB WUCA), which is approximately six miles to the west of the proposed site, also in Manatee County. (The SWUCA includes the MIA and ETB WUCA.) Pending final adoption of rules for the SWUCA, the District will continue to issue WUPs for proposed water uses that meet the conditions for issuance. The District cannot treat new uses and existing renewal uses any differently when considering the issuance of a permit. Once SWUCA rules and minimum flows and levels are established, the District expects to rely on a more regional approach to address long-term cumulative impacts over the entire use caution area, instead of relying on a permit-by-permit basis to address regional concerns. Standard Condition No. 9 of the proposed WUP requires the permittee to cease or reduce withdrawals as directed by the District, if water levels in the aquifers fall below the minimum levels established by the District Governing Board. The proposed withdrawal will use a seepage with mulch irrigation method, which has a 50 percent efficiency level. See footnote 1. This is the minimum efficiency level currently required for agricultural WUPs within the SWUCA, which approve the use of this irrigation method. As SWUCA rules come into effect, a higher percentage efficiency level probably will be required, as is now required in the Eastern Tampa Bay Water Use Caution Area and also in the Highlands Ridge Water Use Caution Area. Consequently, Standard Condition No. 11 of the proposed WUP requires that, when SWUCA rules are implemented, the permittee must comply with any higher efficiency level or other special regulation that may be required for the SWUCA area. DCAP's Challenge to the Proposed WUP DCAP does not keep official membership records. It does not maintain any list of current members. According to Behrens, there are five members of the board of directors. DCAP does not hold corporate meetings, annual meetings or maintain corporate records. Members do not meet. There are no means to document the existence of members for this organization. Behrens is a member of DCAP. He has owned five acres adjoining the west side of Horse Creek (in DeSoto County) since 1985. Behrens complains that the District does not look at the cumulative effect on his well and other people he knows, such as George Chase. Behrens is concerned with any lowering of the water level in the area, including Horse Creek. He believes that approval of wells in the area, including the proposed well, is the straw that is breaking the camel's back. Mr. Chase shares this view. Behrens relies on an artesian free-flowing, two-inch diameter well, for domestic water use, located in the intermediate aquifer, approximately 150 feet deep. (Behrens' well is approximately 18-20 miles from the proposed Basso well.) For most of the time he has lived there, the well had an electric pump for obtaining water. Approximately one year ago, the pump went bad, and a replacement system has not been installed. Currently, Behrens has no pump on the well, and in dry periods, has to obtain water for domestic uses from nearby Horse Creek, which is low during the dry season. (Behrens depends on Horse Creek to pursue his recreation, wildlife, and aesthetic values.) Having a flowing artesian well will enable him to obtain water from the well without having to install an electrical pump, a situation which is desired by Behrens, in part, because the property is in a flood plain and experiences frequent flooding and electrical outages. Not all artesian wells flow. Artesian wells are completed into confined aquifers in which the water in a tightly cased well, will rise to a level above the formation being measured. Water would have to rise above the land surface to be a flowing well. For a well to be artesian, the well must be under confined pressure. For a well drawing water from a confined aquifer, such as the intermediate or the Upper Floridan Aquifer systems, the measured water level in the well is a reflection of the amount of potentiometric pressure in the well. This level can be affected just as much by the amount of recharge as it can by the amount of water withdrawals. There is no evidence that the proposed water use will adversely impact the flowing nature of either Behrens' or Chase's well. The evidence demonstrates that the proposed water use will not adversely impact Behrens' well. George Chase is a member of DCAP. Mr. Chase lives in Arcadia, DeSoto County, Florida. His property is adjacent to the Peace River. Mr. Chase's well is a two-inch diameter well, believed to be about 150 feet deep and equipped with a 12-volt DC solar-powered pump. Mr. Chase has in the past relied on artesian pressure within the confined intermediate aquifer to supply water to his solar-powered home. The solar-powered pump assists in supplying water to the home. In recent years, Mr. Chase has experienced low water pressure in his well. In Spring 2000, Mr. Chase contacted the District to complain that when an adjacent citrus grove was irrigating the groves, it appeared to affect the water level in his well such that the well's ability to flow was impacted. (According to Mr. Chase, his neighbors have had problems obtaining sufficient water from their wells and reaching water with standard pumps.) This citrus grove is an existing legal user of water that pre-existed Mr. Chase's well. In recent years, numerous domestic wells have been constructed in the vicinity of the Chase home that are large diameter wells utilizing submersible pumps with 110-volt AC power. These wells are more efficient at producing water than the type of well and pump being used by Mr. Chase, are located within a few hundred feet of Mr. Chase's well, and are open to the intermediate aquifer as is the Chase well. Based upon the District's experience in other areas, where there is a cluster of domestic wells drawing from the same intermediate aquifer, such adjacent wells have a much greater impact on each other than do other more distant wells, such as the previously discussed citrus irrigation wells, that are open solely to the confined Upper Floridan Aquifer System. This conclusion is based upon monitoring of the ROMP sites in the affected areas. Mr. Chase's well is approximately ten miles from the proposed withdrawal site. There is no basis to conclude that the proposed water use will cause any adverse impacts to Mr. Chase's well. DCAP members' interests are not affected any differently by the proposed use than are the interests of the general public. DCAP has produced no evidence to support its assertion that the issuance of this permit will result in lowered water levels in the Horse Creek and Peace River or other surface waters. DCAP has produced no evidence to support its assertion that the permit will cause adverse impacts to surface water flows or surface waters or to environmental features such as vegetation, fish, and wildlife. DCAP has produced no evidence that its substantial interests are affected by the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southwest Florida Water Management District enter a final order: Determining that Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc., have satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of WUPs;3 Issuing proposed General Water Use Permit No. 20012185.000, as set forth in District Exhibit No. 4; and Finding that DCAP lacks standing to challenge the issuance of the permit. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 3rd day of June, 2002.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011.
The Issue The issue in this case is whether Water Use Permit (WUP) Application Number 20009478.005 meets the conditions for issuance as established in Section 373.223, Florida Statutes (2001), Florida Administrative Code Rule 40D-2.301 (April 2001), and the District’s Basis of Review for Water Use Permit Applications.
Findings Of Fact The Parties Petitioner, Alan Behrens, owns real property and a house trailer located at 4070 Southwest Armadillo Trail, in Arcadia, Florida. Behrens uses a two-inch well as the primary source of running water for his trailer. Boran and his family operate a ranch and sod farm in Arcadia, Florida, under the limited partnership of Boran Ranch and Sod, Ltd. Boran uses several different on-site wells to irrigate the farm. See Findings 12-17, infra. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. Permit History Boran’s property is a little over 1,000 acres in size, on which he has raised cattle and grown sod for approximately the past four years. Before Boran owned the property, its prior occupants used the land for growing fall and spring row crops (primarily tomatoes). Boran's cattle and sod farm uses less water than was used by previous owners and occupants. In 1989, the original permit holders could make annual average daily withdrawals of 309,000 gallons but also were allowed a maximum daily withdrawal of 6,480,000 gallons. In 1992, the permitted withdrawals increased to an annual average daily quantity of 2,210,000 gallons, with a peak monthly limit of 3,596,000 gallons per day. On December 14, 1999, Boran received an agricultural water use permit (WUP No. 20009478.004) from the District. This current existing permit expires on December 14, 2009. The current permit grants Boran the right to withdraw groundwater for his agricultural use in the annual average daily quantity of 1,313,000 gallons, and with a peak month daily quantity of 3,177,000 gallons. On September 11, 2000, Boran filed an application to modify his existing water use permit. Modification of Boran's existing permit does not lengthen the term of the permit, and the scope of the District's review was limited to those features or changes that are proposed by the modification. The proposed modification would allow Boran to increase his annual average daily quantity by 175,000 gallons, and increase the peak month daily quantity by 423,900 gallons, for the irrigation of an additional 129 acres of sod. With the proposed increase, the new annual average daily quantity will be 1,488,000 gallons, and the new peak month daily quantity will be 3,600,900 gallons. The proposed modification also provides for the construction of an additional well (DID #6) on the southeastern portion of property, which will withdraw groundwater from the upper Floridan aquifer. The proposed agency action also entails a revision of the irrigation efficiency rating for the entirety of Boran Ranch. Irrigation efficiency refers to the ability to direct water to its intended target, which in this case means the root zone of the sod, without losing water to evaporation and downward seepage. Under the proposed permit modification, Boran will increase the entire farm’s water efficiency from 65 percent to 75 percent. As discussed further in the Conditions for Issuance section infra, the District's AGMOD modeling program uses this efficiency rating as part of its determination of the appropriate quantities for withdrawals. The higher the efficiency rating, the less water received under a permit. Because the efficiency rating increased, the application rate for water decreased from 42" per year to 36.4" per year for the entire Boran Ranch. Boran's Wells There are six well sites (labeled according to District identification numbers, e.g., DID #3) existing or proposed on Boran’s property. DID #1 is an eight-inch well located in the northeastern portion of the property. DID #1 provides water solely from the intermediate aquifer. DID #2 is an eight-inch well located in the middle of the property. DID #2 withdraws water from both the intermediate and upper Floridan aquifers. Both DID #1 and DID #2 were installed in 1968, and predate both the first water use permit application for the farm and the District's water use regulatory system. DID #4 is a twelve-inch well located in the north- central part of the property and solely taps from the upper Floridan aquifer. DID #4 had already been permitted and constructed as of the date of the proposed modification application at issue in this case. DID #3 and DID #5 are twelve-inch wells which have already been permitted for the southern and northern portions of the property, respectively, but have not yet been constructed. Both wells will withdraw water only from the upper Floridan aquifer. DID #6 is a proposed twelve-inch well to be located on the southeastern portion of the property and to irrigate an additional area of sod. DID #3, #5, and #6 will all be cased to a depth of approximately 540 feet, and only open to the upper Floridan aquifer to a depth of approximately 940 feet. By casing the well with pipe surrounded by cement, these wells will be sealed off to all aquifers above 540 feet, including the intermediate aquifer. All the wells on the property are used to irrigate sod. The wells have artesian flow, but utilize diesel pumps to provide consistent flow pressure year-round throughout the fields (some of which can be a mile and a half from a well). Since running the pumps costs money, there is an economic incentive not to over-irrigate. In addition, over-irrigation can lead to infestations of fungi and insects, and eventually cause the grass to rot and die. As a result, the fields receive irrigation only when dry areas in the fields appear and the grass begins to wilt. Boran Ranch Operations and Management Practices Boran Ranch primarily grows three kinds of grasses: St. Augustine Floratam; St. Augustine Palmetto; and Bahia. (Boran also is experimenting on a smaller scale with common paspalum and common Bermuda.) The Bahia grass, which is what also grows in the ranch's cattle pasture, does not require irrigation; the St. Augustine grasses are less drought- resistant and require irrigation at times. The majority of the sod sold to residential installers (who ordinarily work for landscape companies) is a St. Augustine grass. Commercial or governmental roadside installations favor Bahia. Currently, Boran sells more Bahia than St. Augustine. But market demand determines which types of grass are produced on the farm. As residential use and demand for St. Augustine in southwest Florida increases, so would the proportion of the farm used for growing St. Augustine grass. Boran grows sod year-round because of a large demand for the product in Ft. Myers and Cape Coral, and to a lesser extent in Punta Gorda and Port Charlotte. Sod helps control erosion and is considered to have aesthetic value. There also was some evidence that sod lowers the ambient temperatures, as compared to bare dirt; but the evidence was not clear how sod would compare to other ground cover in lowering temperatures. When subsurface seepage irrigation is being used, a sod field must be disked and "laser-leveled" to the proper elevation, with a slight slope created in the field to help ensure proper irrigation and drainage, before it can be used for sod production. The fields are laser-leveled before the irrigation system is installed and the crop is planted. The perforated irrigation supply lines of Boran Ranch’s subsurface irrigation system, also known as the "tile," run the opposite direction of the slope of the field and perpendicular to the main irrigation line. Once the subsurface irrigation system is installed, the field receives sprigs of sod, which are then watered and "rolled" to pack them into the ground. Approximately three months after a field has been rolled, the new sod is then periodically fertilized, sprayed and mowed. Sod takes approximately one year to grow before it may be harvested. The sod at Boran Ranch is harvested via tractor with a "cutter" on its side, which cuts underneath the grass, lifts it up onto a conveyor belt, and then onto a pallet for shipping. There are four different types of irrigation systems used for growing sod in Florida: (1) pivot systems which rely on sprinklers attached to overhead lines that rotate around a fixed point; (2) overhead rain guns which utilize motorized hydraulic pressure to spray a field; (3) above-ground seepage; and (4) subsurface irrigation systems (which can also be used to drain excess water from fields during large rain events). The most efficient irrigation system used for sod in Florida is the subsurface irrigation system. Boran Ranch first started the subsurface irrigation system approximately four years ago. Since that time, Boran Ranch has converted almost all its fields to the subsurface irrigation system, at a cost of approximately $1150 to $1350 per acre. As a result of this conversion process, Boran Ranch now uses less water per acre of sod. The subsurface irrigation system delivers water from a well to a water control structure (also known as the "box") via the imperforated main irrigation line. The perforated lines of the "tile" are connected to this main irrigation line at a 90-degree angle. The largest portion of the "box" sits underground. Once the water in the main irrigation line reaches the "box," water builds up behind removable boards contained in the box, creating the backpressure which forces water out into the tile. Water flows out from the tile to maintain the water table level at or near the root zone of the sod. Subsurface irrigation systems only function on property that has a hardpan layer beneath the soil. The hardpan layer acts as a confining unit to minimize the downward seepage of water, thereby allowing the subsurface irrigation system to work efficiently. Behrens questioned whether Boran Ranch has the necessary hardpan based on Todd Boran's reliance on hydrogeologists for this information. But the expert testimony of Boran's hydrogeology consultant and the District's hydrogeologist confirmed Todd Boran's understanding. Typically, the highest board in the box has the same height as the top of the field. Once the water level inside the box surpasses the height of the last board, water will spill over that board into the remainder of the box and then out another main irrigation line to the next box and set of tiles. By removing some of the boards in the box, Boran can bypass irrigating certain sections of his fields in favor of other areas. Excess water from the fields flows into field ditches which lead to wetlands on the property. If water leaves the wetlands during episodes of heavy rains, it flows downstream to the Peace River. Conditions for Issuance Boran Ranch is located in southwestern DeSoto County, in an area designated by the District as the Southern Water Use Caution Area (SWUCA). The District created the SWUCA, which covers 5,000 square miles, after first determining that the groundwater resources of eastern Tampa Bay and Highlands Ridge regions were stressed and creating the Eastern Tampa Bay Water Use Caution Area (ETBWUCA) and Highlands Ridge Water Caution Area (HRWUCA). Both the ETBWUCA and the HRWUCA are contained within the larger boundaries of the SWUCA. Within the ETBWUCA is an area along the coasts of portions of Hillsborough, Manatee, and Sarasota counties known as the Most Impacted Area (MIA). Special permitting rules exist for new projects located within the ETBWUCA, HRWUCA, and MIA, but not within the remainder of the "undifferentiated" SWUCA. Boran Ranch is located in this "undifferentiated" area of the SWUCA. Behrens took the position that Boran should not be permitted any additional water use until special permitting rules are promulgated for the "undifferentiated" SWUCA. But Behrens could cite no authority for such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. The evidence proved that the quantities authorized by the proposed modification are necessary to fulfill a certain reasonable demand, as required by Rule 40D- 2.301(1)(a). Boran sought additional water quantities through the permit modification application in order to irrigate an additional 129 acres of its sod farm. The application reflects a need for additional water, associated with additional acreage added to the farm. Boran used the District's AGMOD spreadsheet model, which is based on a mathematical methodology known as the modified Blainey-Criddle method, to determine the reasonable quantities for Boran's specific agricultural use. AGMOD inputs into its computations the following variables: (1) geographic location of the proposed use; (2) type of crop grown; (3) irrigation (efficiency); (4) pump capacity; (5) soil type; and (6) number of acres to be irrigated. AGMOD is a generally accepted tool used for determining the allocation of water quantities for agricultural use. In the instant case, the AGMOD calculations incorporated 87 years of rainfall data and its results reflect the quantities necessary in the event of a two-in-ten-year drought. Similarly, the AGMOD calculations in the instant case take into account the change in irrigation efficiency from 65 percent to 75 percent. Behrens suggested that Boran should not be allowed to use any more water until minimum flows and levels are established for the intermediate aquifer in the vicinity. However, Behrens could cite no authority for imposing such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. See Finding 49 and Conclusion 86, infra. Behrens also suggested that inputs to AGMOD should assume more Bahia and less St. Augustine grass so as to reduce the resulting amount of reasonable demand. He also suggested that Boran's reasonable demand should not take into account possible future increases in St. Augustine grass production based on possible future market demand increases. But it does not appear that the District requires an applicant to differentiate among various types of grasses when inputting the crop type variable into the AGMOD model for purposes of determining reasonable demand. See Water Use Permit Information Manual, Part C, Design Aids (District Exhibit 2C), Table D-1, p. C4-9. The evidence proved that Boran demonstrated that the proposed use will not cause quantity or quality changes that adversely impact the water resources, on either an individual or cumulative basis, including both surface and ground waters, as required by Rule 40D-2.301(1)(b). Data from water quality monitoring reports indicate that water quality at Boran Ranch and in the region has remained fairly consistent. There were no statistically significant declining trend in water levels in the region. Behrens admitted that water quality in his well has been consistently good. One apparent increase in total dissolved solids and chlorides in DID #1 was explained as being a reporting error. Boran inadvertently reported some findings from DID #2 as coming from DID #1. Until the error was corrected, this made it appear that water quality from DID #1 had decreased because, while DID #1 is open only to the intermediate aquifer, DID #2 is open to both the intermediate aquifer and the upper Florida aquifer, which has poorer water quality. Both Boran and the District used the MODFLOW model, a generally accepted tool in the field of hydrogeology, to analyze withdrawal impacts. The purpose of modeling is to evaluate impacts of a proposed use on the aquifer tapped for withdrawals, and any overlying aquifers including surficial aquifers connected to lakes and wetlands. MODFLOW uses mathematics to simulate the different aquifer parameters for each production unit determined from aquifer performance testing. During the permit application process, both Boran and the District conducted groundwater modeling by simply adding the proposed new quantities to models developed for Boran's permit application in 1999. The models were comparable but not identical; the District's model was somewhat more detailed in that it separated predicted drawdowns into more aquifer producing units. Both models satisfied the District that the proposed modification would have no adverse impact on water resources. After the challenge to the Proposed Agency Action, the District created a new model to assess the impact of only the additional quantities requested by the modification. This new model added some aquifer parameters obtained from Regional Observation Monitoring Program (ROMP) well 9.5, which was constructed very close to the Boran Ranch in 1999. (Information from ROMP 9.5 was not available at the time of the earlier models.) The new model allowed the District to limit the scope of its review to those changes proposed by the modification. The results of this model show that impacts are localized and that most are within the confines of Boran’s property. The greatest impacts resulting from the proposed modification would occur in the Suwannee Limestone producing unit (the upper-most portion of the upper Floridan aquifer), the unit to be tapped by DID #6. The confining unit above the upper Floridan aquifer in this region of DeSoto County is approximately 300-400 feet thick, and impacts on the intermediate aquifer, which is above this confining unit, are much less. When the District's new model was run for peak monthly withdrawals (423,900 gpd for 90 days), the model's 1.0 foot drawdown contour was contained within the confines of Boran’s property, and the 0.1 foot drawdown contour extended only approximately two miles out from the well node of DID #6. Atmospheric barometric changes can cause fluctuations in aquifer levels that exceed a tenth of a foot. As minimal as these modeled impacts appear to be, they are larger than would be expected in reality. This is because, for several reasons, MODFLOW is a conservative model- -i.e., impacts modeled are greater than impacts that would be likely in actuality. First, MODFLOW is a mathematical, asyntopic model. This means it models very gradually decreasing drawdowns continuing over long distances as predicted drawdowns approach zero. This tends to over-predict impacts at greater distances from the withdrawal. In reality, the heterogeneity or discontinuity of confining units cuts down on drawdown effects. The steepest drawdowns occur at a well node and then decline relatively rapidly with distance. Second, several model inputs are conservative. The annual average quantities for water use generated under the AGMOD methodology is based on a two-in-ten-year drought year. The peak month quantity applies to the three driest months within the two-in-ten-year drought period. The MODFLOW model applies this 90-day peak usage continuous pumping under AGMOD and conservatively assumes no rainfall or recharge to the aquifers during this period. Both of these are extremely conservative assumptions for this region of Florida. The District's determination of reasonable assurances "on both an individual and a cumulative basis" in water use permit cases only considers the sum of the impact of the applicant's proposal, together with all other existing impacts (and perhaps also the impacts of contemporaneous applicants). The impacts of future applicants are not considered. This differs from the cumulative impact review under Part IV of Chapter 373 (environmental resource permitting). See Conclusions 80-84, infra. Modeling is a component of the District’s assessment of impacts on a cumulative basis. In addition, the District reviewed and assessed hydrographs of the potentiometric surface from nearby ROMP wells, water quality data, permit history of the Boran site, and regional hydrologic conditions. The hydrographs represent the accumulation of all impacts from pumpage in the area and show stable groundwater levels in the region. Water quality also is stable, with no declining trends. The permit history indicates that permitted withdrawals on the Boran site have declined. For all of these reasons, the evidence was that Boran's proposed withdrawals would create no adverse impacts on water resources on a cumulative basis. The evidence proved that the proposed agency action will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources, as required by Rule 40D-2.301(1)(c). Due to the significant confinement between the source aquifers and the surficial aquifer and surface water bodies, the modeling results show no adverse impact to the surficial aquifer, and no adverse impact to wetlands, streams, estuaries, fish and wildlife, or other natural resources. The evidence was that there are no minimum flows or levels set for the area in question. Furthermore, Standard Condition 9 of the Proposed Agency Action requires Boran to cease or reduce withdrawals as directed by the District if water levels should fall below any minimum level later established by the District. The more persuasive evidence was that the requirements of section 4.3 of the District's Basis of Review have been met. (A moratorium on water use permits until establishment of minimum flows and levels would be neither reasonable nor appropriate.) The evidence proved that the proposed use will utilize the lowest water quality he has the ability to use, as required by Rule 40D-2.301(1)(e), because the new withdrawals are exclusively from the upper Floridan aquifer, which has poorer quality than the intermediate aquifer. Deeper aquifers cannot be used because the water quality is poorer than the upper Floridan aquifer, and it is technically and economically infeasible to use it for agricultural purposes. Behrens suggests that Boran should be required to discontinue all withdrawals of higher quality water from the intermediate aquifer as part of the proposed modification. While an offer to do so might be welcomed (as was Boran's offer to install subsurface seepage irrigation and apply the higher efficiency percentage to the entire Boran Ranch), Behrens could cite no authority for imposing such a condition; and the more persuasive evidence was that imposition of such a condition would be neither reasonable nor appropriate under the circumstances of this case. The evidence proved that the proposed use will not significantly induce saline water intrusion, as required by Rule 40D-2.301(1)(f), because the model results show that the drawdown contours do not approach anywhere near the ETBWUCA or MIA areas. Boran's Ranch is located approximately 21 miles from the MIA boundary and 10.8 miles from ETBWUCA boundary. Further, Boran must monitor the water quality in DID #1 and DID #4 and document any changes in water quality as a result of the withdrawals. The parties have stipulated that the proposed use meets the requirements of Rule 40D-2.301(1)(g) and will not cause pollution of the aquifer. The evidence proved that the proposed use will not adversely impact offsite land uses existing at the time of the application, as required by Rule 40D-2.301(1)(h), because the modeling showed no impact to the surficial aquifer or land use outside Boran Ranch. The confinement between the point of withdrawal and the surface is too great to impact offsite land uses in the instant case. The evidence proved that the proposed use will not adversely impact any existing legal withdrawal, as required by Rule 40D-2.301(1)(i), based on the ROMP hydrographs and modeling showing minimal drawdowns outside the boundaries of Boran Ranch. Behrens claims that Boran's proposed modification will adversely impact his well, which is approximately 3.5 miles northeast of the northeast corner of the Boran property and over four miles away from DID #6. But the greater weight of the evidence was to the contrary. (The wells of other DCAP members were even further away, making impacts even less likely.) Behrens has no independent knowledge of the depth of his two-inch well but believes it is approximately 150 feet deep, which would place it within the intermediate aquifer. In view of the consistent quality of Behrens' well water, and the nature of his well construction, it is most likely that Behrens' well does not penetrate the confining layer between the intermediate aquifer and the upper Floridan aquifer. If 150 feet deep, Behrens' well would not extend into the deepest producing unit of the intermediate aquifer (PZ-3); rather, it would appear to extend into the next deepest producing unit of the intermediate aquifer (PZ-2). But it is possible that Behrens' well cross-connects the PZ-2 and the shallowest producing unit of the intermediate aquifer (PZ-1). (The evidence did not even rule out the possibility that Behrens' well also is open to the surficial aquifer.) Assuming that Behrens' well is open to the PZ-2 only, conservative MODFLOW modeling predicts no impact at all from the proposed modification. (Behrens' well would be outside the zero drawdown contour.) Meanwhile, hydrographs of PZ-2 from nearby ROMP wells show marked fluctuations (five-foot oscillations) of the potentiometric surfaces in producing units of the intermediate aquifer. These fluctuations appear to coincide with increased pumping out of the intermediate aquifer. These fluctuations in the potentiometric surface are not being transmitted up from the upper Floridan aquifer or down from the surficial aquifer. The potentiometric surface in those aquifers do not exhibit matching fluctuations. It appears that the intermediate aquifer is being impacted almost exclusively by pumping out of that aquifer. (This evidence also confirms the integrity of the relatively thick confining layer between the intermediate and the upper Floridan aquifers, which serves to largely insulate Behrens' well from the influence of pumping out of the upper Floridan.) Behrens seems to contend that, in order to determine adverse impacts on a cumulative basis, the impact of Boran's entire withdrawal, existing and proposed, which is modeled conservatively at approximately 0.3 feet, must be considered. But the District considers an adverse impact to an existing legal withdrawal to consist of an impact large enough to necessitate modification to the producing well in order for it to continue to function as intended. The greater weight of the evidence was that the well on Behrens' property was not designed to be a free-flowing well but was designed to use a pump to operate as intended. At the time Behrens purchased his property, there was a well and a non-functioning pump on the property. Even at the beginning of his ownership, he did not always have running water without a functioning pump. In approximately 1986 or 1987, Behrens installed a new electric pump because it allowed the well to produce more water. After installation of the pump, Behrens raised his trailer an additional five feet (to guard against flooding) which caused it to be approximately ten feet high, meaning the water had to travel that much farther against gravity to reach Behrens' faucets. For most of the time that he has owned the property, Behrens has used a pump on the well. Behrens installed a check valve to allow him to turn off the pump. Sometimes during storm or flood conditions, electric power failed or was cut off, and Behrens was forced to rely solely on artesian flow, which was sometimes adequate in flood conditions during the rainy season. At other times when artesian flow was adequate, Behrens would turn off the pump and rely solely on artesian flow. But it also was sometimes necessary for Behrens to use the pump to get adequate water flow. During the summer of 2001, Behrens' pump failed, and he had to rely solely on artesian flow. As in prior years, artesian flow was sometimes inadequate. In order to be able to get at least some artesian flow for the maximum amount of time, Behrens lowered the spigot on his well by about two feet. Although Behrens is aware that the iron casing of his well could corrode over time, he has never called a licensed well driller or other contractor to inspect his well. Behrens did not test his own well for possible blockage that would result in a lower yield. Furthermore, Behrens admits that his whole outdoor water system needs to be completely replaced. The evidence proved that the proposed use will incorporate water conservation measures, as required by Rule 40D-2.301(1)(k), based on the water conservation plan submitted to the District, installation of a state-of-the-art irrigation system, increase in efficient use of the water, and decrease in the application rate. (Behrens' arguments that Boran has been allowed to use too much water and his question as to the existence of hardpan underlying Boran's fields already has been addressed. See Findings 27 and 35, supra.) The parties have stipulated that Boran has demonstrated that the proposed use will incorporate reuse measures to the greatest extent practicable, as required by Rule 40D-2.301(1)(l). The evidence proved that the proposed use will not cause water to go to waste, as required by Rule 40D-2.301(m), because the irrigation method is the most efficient system that is economically and technically feasible available for sod. (Behrens' question as to the existence of hardpan underlying Boran's fields already has been addressed. See Finding 27, supra.) The evidence proved that the proposed use will not otherwise be harmful to the water resources of the District, as required by Rule 40D-2.301(1)(n), based on the review of all other permit criteria. Propriety of Behrens' Purpose Behrens did not review the District's permit file on Boran's application before he filed his petition. The evidence suggested that he traveled to the District's Sarasota office for that purpose but found on his arrival that the complete permit file was not available for inspection there. Because of the filing deadline, he did not find time to make another attempt to review the permit file of record before he filed his petition. Behrens also did not contact Boran, the District or anyone else with any questions about the proposed agency action before filing his petition. He also did not visit Boran’s property, and made no inquiry as to the irrigation system employed by Boran. Behrens also did not do any additional legal research (beyond what he had done in connection with other water use permit proceedings) before filing his petition. Behrens believed he had all the information he needed to file his petition. Behrens has previously filed at least one unsuccessful petition challenging the District’s issuance of a water use permit. See Behrens v. Southwest Fla. Water Management Dist., DOAH Case No. 00-4801 (DOAH Jan. 29, 2001). DCAP, with Behrens acting as its president, has previously filed at least three unsuccessful petitions challenging the District’s issuance of a water use permit. See, e.g., DeSoto Citizens Against Pollution, Inc. v. Farmland Hydro Limited Partnership, DOAH Case No. 02-232 (Southwest Fla. Water Man. Dist. June 25, 2002); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01- 3056 (DOAH Aug. 22, 2001); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01-2917 (DOAH Sept. 24, 2001). However, none of those proceedings involved a project at the Boran site. It is found that, under the totality of circumstances, Behrens' and DCAP's participation in this proceeding was not for an improper purpose--i.e., not primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of Boran's permit modification. While a reasonable person would not have raised and pursued some of the issues raised by Behrens and DCAP in this proceeding, it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose. It appears that Behrens based his standing in part on the requirement in Rule 40D-2.301(1)(i) that Boran provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal to be provided "on both an individual and a cumulative basis.” (Emphasis added.) Not unreasonably, Behrens argued that this requirement allowed him to base his standing on alleged injuries from all of Boran's withdrawals, existing and proposed, which would create a 0.3- foot drawdown on his well. While his argument is rejected, it cannot be found to be frivolous or made for improper purpose. Behrens' argument that Boran did not meet Rule 40D- 2.301(1)(i) was based on the 0.3-foot drawdown and his position that his well was designed to be artesian free- flowing. While Behrens' proposed finding was rejected, the position he took is not found to be frivolous or taken for improper purpose. Several other arguments made and positions taken by Behrens have been rejected. See Findings 27, 34, 35, and 51, supra, and Conclusions 86-87, infra. But they cannot all be found to have been frivolous or made and taken for improper purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting Boran’s water use permit application number 20009478.005; and denying the motions for attorney's fees and costs under Section 120.595(1), Florida Statutes. Jurisdiction is reserved to enter a final order on the part of the motions for sanctions under Section 120.569(2)(e). DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative 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 this 29th day of July, 2002. COPIES FURNISHED: Alan R. Behrens, President DeSoto Citizens Against Pollution, Inc. 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Mary Beth Russell, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
The Issue The issue in this case is whether Seacoast Utility Authority's challenge to the South Florida Water Management District's proposed issuance of a water use permit to PGA National Golf Club and Sports Center, Ltd. in a critical water supply area should be upheld. As discussed below, the parties have stipulated that, in deciding to issue the permit, the South Florida Water Management District has not evaluated or considered whether the use of reclaimed water was either economically, environmentally or technically infeasible.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Seacoast is a publicly owned water and sewer utility which operates a wastewater treatment facility in Palm Beach County, Florida. Seacoast's service area is bounded on the south by Riviera Beach and on the north by the Town of Jupiter. Seacoast operates four treatment plants: two water plants and two wastewater plants. Seacoast's regional wastewater facility currently generates approximately six (6) million gallons per day ("MGD") of reclaimed water and is permitted by the Florida Department of Environmental Protection ("DEP") as an eight (8) MGD wastewater treatment plant. As discussed in more detail in the Conclusions of Law below, the Florida Legislature and DEP have sought to encourage the reuse of reclaimed water. This policy is one of the many sometimes competing goals that are supposed to be taken into account in the water use permitting process. Until a few years ago, the treated effluent from one of Seacoast's wastewater plants was directly discharged to nearby surfacewater. During the last four years, Seacoast installed a pumping station and five miles worth of transmission lines to deliver all of its treated effluent to its regional wastewater facility. Seacoast claims that these efforts were prompted by its interpretation of changing regulations and a perceived regulatory preference for reuse of water.1 Although Seacoast claims that there has been a change in regulatory emphasis in favor of reuse of reclaimed water, Seacoast is not under a mandate from any court or agency to sell or utilize any specific amount of reclaimed water. It does appear that a deep injection well used by Seacoast for disposal of wastewater is not or was not operating as designed. Seacoast was apparently obligated to construct reclaimed water facilities at its wastewater treatment plant as part of its permit from DEP for the injection well. There was no requirement that the reclaimed water be sold or otherwise utilized. The intended primary disposal for Seacoast's reclaimed water is reuse.2 Seacoast's wastewater treatment plant provides irrigation quality reclaimed water. Seacoast tries to sell the reclaimed water for irrigation use in an effort to recoup the costs incurred in constructing the facilities necessary to reclaim the water. Backup disposal is achieved through injection down a 3300 feet deep injection well into the boulder zone. Once the reclaimed water is injected down the well, it is unavailable for reuse. The evidence suggests that there are other possible utilizations available for Seacoast's reclaimed water including sale to another utility and/or backup recharge to preserve wetlands during periods of high pumpage. For example, Seacoast is apparently in the process of applying for the necessary permits to utilize a portion of its reclaimed water to prevent harm to wetlands adjacent to its Hood Road Well Field by constructing an hydraulic barrier. At all times pertinent to this proceeding, only approximately 1.2 MGD of the reclaimed water generated by Seacoast was being reused. The remaining approximately 5 MGD was disposed of through the injection well. PGA owns and operates three (3) golf courses in Palm Beach County within Seacoast's service area. PGA's golf courses are located within an area that has been designated by the District as a Critical Water Supply Problem Area. Critical Water Supply Problems Areas are geographical regions where the available water supply due to the potential for saltwater intrusion, wetland impacts, or impacts to existing legal uses, is predicted not to meet water demands that are projected during the next 20 years. See, Chapter 40E-23, Florida Administrative Code. The use of reclaimed water is not mandated in such areas. However, the District's Rules seek to insure the optimal utilization of alternative sources of water in such areas to minimize the potential harm to water resources. It is not clear from the evidence presented in this case when PGA first obtained the Permit from the District for golf course irrigation. The Permit allows PGA to use the groundwater table as the source of water for its irrigation. Before its expiration, PGA timely sought renewal of the Permit. On April 12, 1994, the District staff recommended renewal of PGA's Permit. The staff recommendation would allow PGA to continue using the groundwater table as the source of its water. The recommendation did not contain a requirement for PGA to use any reclaimed water as part of its golf course irrigation system. Seacoast became aware of PGA's application to renew its Permit through a routine review of all water use permit applications made to the District by "potential reclaimed water users in [its] service area." Seacoast filed a Petition for Formal Administrative Hearing challenging the District staff's recommendation to renew PGA's Permit. In its Petition, Seacoast alleged that its substantial interests would be affected by the renewal of the Permit because Seacoast's ability to achieve the State of Florida's goals of conservation and environmental protection depends upon PGA, and other similar country clubs, being required to consume reclaimed water. Seacoast contends that the staff recommendation immediately eliminates a major potential consumer of Seacoast's reclaimed water which purportedly impairs Seacoast's ability to meet state objectives for reuse of reclaimed water and results in the undesirable continued disposal of reclaimed water via deep well injection. In connection with its challenge to the proposed renewal of PGA's Permit, Seacoast has stipulated that PGA's proposed withdrawals from the groundwater table would not cause harm to the water resources of the District. Seacoast also admits that it has never evaluated whether it would be environmentally injured by PGA's withdrawals from the groundwater table and/or whether the proposed use by PGA is wasteful. The District does not currently have any goals for the utilization of reclaimed water on a regional basis. Instead, the District oversight of the utilization of reclaimed water is done on a permit by permit basis. As a general policy, the District will not accept a water use permit application in an area of critical water shortage unless a reuse feasibility determination is included. The District's rules do not currently contain any guidelines as to how the determination of feasibility is to be made, nor are there any criteria for reviewing an applicant's determination of feasibility. As discussed below, the District does not even consider the applicant's reuse feasibility determination unless the proposed withdrawal is projected to result in harm to the resources of the District. Even when harm to a resource is projected, the District accepts an applicant's feasibility determination regarding the use of reclaimed water without question or analysis. For the other consumptive use criteria set forth in Rule 40E-2.301, the District independently evaluates the applicant's conclusions to confirm that they are reasonable. In other words, the District treats reclaimed water as an alternative source of water in the event that an applicant's proposed water use is projected to cause harm to the water resources of the District. If no harm is expected to occur to water resources as a result of a proposed use, the District does not review the applicant's determination of whether or not to use reclaimed water. If harm is projected, the applicant is required to look at alternatives like water conservation or utilization of water sources other than those proposed (such as reclaimed water). The applicant is free to select any alternative that mitigates the harm. Thus, even in a Critical Water Supply Area, an applicant can mitigate concerns about harm to the resource without utilizing reclaimed water. In sum, under the District's current procedures, the use of reclaimed water is never required. It is simply one alternative an applicant can utilize to offset or mitigate projected harm to water resources (such as saltwater intrusion, contamination, wetland drawdowns or existing legal use impacts) from a proposed withdrawal. Even when the District staff concludes that an applicant's proposed use will result in harm to water resources, the staff does not critically review the applicant's determination of whether the use of reclaimed water is economically, environmentally, or technically infeasible. With respect to PGA's Permit, the District staff concluded that no harm to the resource was predicted as a result of PGA's proposed use. Thus, PGA's determination not to use reclaimed water was not evaluated or even considered. The District explains that its implementation of the permitting program is based upon its interpretation that its primary responsibility is to prevent harm to water resources. The District points out that there are a number of factors to be considered in utilizing reclaimed water. These factors include, but are not limited to, the cost of the reclaimed water, the cost of retrofitting an irrigation system, the long-term availability of the reclaimed supply and the availability of a back-up supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order dismissing the Petition filed by Seacoast challenging the renewal of Permit Number 50-00617-W to PGA for golf course irrigation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February 1995. J. STEPHEN MENTON 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 6th day of February 1995.
