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 The issue is whether Respondents should be subject to civil penalties and required to submit a Compliance Plan for the reasons stated in the Administrative Complaint and Order filed on January 8, 2002.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this enforcement action, Petitioner, Southwest Florida Water Management District (District), proposes to assess civil penalties against, and require a compliance plan from, Respondents, Balm Associates, Inc. (Balm) and Goodson Farms, Inc. (Goodson), on the grounds that from March 1999 through July 2001 they made water withdrawals from certain property in Hillsborough County, Florida, without a water use permit, and after a permit was obtained in August 2001, they continued to exceed the annual average daily withdrawals authorized under the permit through the month of November 2001, or just prior to the preparation and issuance of the Administrative Complaint and Order (Complaint).1 While not denying that excessive pumpages may have occurred, and that a permit was not obtained until August 2001, Balm points out that it is the owner-lessor of the property and not the consumptive user of the water, and contends that the District has no authority to enforce its rules against, and recover civil penalties from, the non-user of the water. In its request for a hearing, Goodson did not specifically dispute the allegation that it consumed water without a permit, or exceeded the withdrawal limits under the new permit, but contended instead that the limits were unrealistic and should be modified. At the final hearing, however, Goodson disputed the accuracy of the water consumption figures used in the Complaint. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries and to administer and enforce Chapter 373, Florida Statutes. Balm is a corporation registered to do business in the State of Florida. Its mailing address is 2101 Huntington Avenue, Sarasota, Florida 34232. It owns approximately 220 acres of land in Section 28, Township 31 South, Range 21 East, in Hillsborough County, Florida, which is the site of the alleged wrongdoing. Goodson is a corporation registered to do business in the State of Florida. Its mailing address is Post Office Box 246, Balm, Florida 33503. Goodson is in the farming business and operates a total of 13 farms, including the farm at issue in this proceeding. Permit Requirements Under Rule 40D-2.041(1), Florida Administrative Code, a water use permit is required whenever total withdrawal capacity from any source or combined sources is greater than or equal to 1,000,000 gallons per day (gpd); annual average withdrawal from any source or combined sources is greater than or equal to 100,000 gpd; or withdrawal is from a well having an outside diameter of 6 inches or more at the surface. Rule 40D-2.351(1), Florida Administrative Code, provides that a permittee must notify the District within 30 days of the sale or conveyance of permitted water withdrawal facilities or the land on which the facilities are located. The same rule also provides that where a permit has been issued to a party whose ownership or legal control of the permitted water withdrawal facilities subsequently ends, the party who assumes control over the facilities may apply to transfer the permit to himself or herself up to the renewal date of the transferor's permit. Finally, Rule 40D-2.351(2), Florida Administrative Code, provides that until a permit is transferred or a new permit is obtained, the party subsequently controlling the permitted water withdrawal facilities will be in violation of District rules for making withdrawals without the required permit. History of Permits on the Property On September 29, 1989, the District issued Water Use Permit No. 207135.001 (the .001 permit) to James Brown (Brown) and B & T Growers Partnership (B & T) for water withdrawals from one well for agricultural purposes on Balm's property. The .001 permit authorized annual average withdrawals of 102,000 gpd of groundwater for agricultural irrigation. On August 29, 1990, the District adopted new rules applicable to District permits within the Eastern Tampa Bay Water Use Caution Area (ETBWUCA). The .001 permit was within the ETBWUCA, and Brown and B & T were provided with a Notice of Permit Modification and new Permit Conditions. The new conditions became effective November 15, 1990. New Condition No. 5 provided that By July 31, 1995, all permitted withdrawal points shall be equipped with totalizing flow meters or other measuring devices as approved in writing by the Director, Resource Regulation Department. Such devices shall have and maintain accuracy within five percent of the actual flow installed. On December 14, 1992, the District approved the transfer of the .001 permit from Brown and B & T to B. Kenda Produce. The Unpermitted Water Withdrawals On June 30, 1997, Goodson entered into a two-year agricultural lease with Balm to use a portion of the property, including acreage previously used by B. Kendra Produce. At the time the lease was entered into, neither Respondent applied to the District to have the .001 permit transferred from B. Kendra Produce. It can be reasonably inferred from the evidence that after the first lease expired, the parties continued to execute new lease agreements at least through the time of the hearing. The portion of the property which Goodson leased and farmed is referred to as the "Sweat Loop Farm" and consists of approximately 100 acres. There is one well with an outside diameter of 10 inches at the surface located on the Sweat Loop Farm. The well's total withdrawal capacity is approximately 1,500 gallons per minute (gpm), which is over 1,000,000 gpd. Thus, withdrawals from the well required a water use permit. As noted earlier, Goodson operates a total of 13 farms on approximately 2,500 acres of land. There are approximately 15 wells on all 13 farms, including the Sweat Loop Farm. Michael E. Hare, an irrigation supervisor who is responsible for the irrigation of all 13 of Goodson's farms, installed a total of approximately 8 meters on the farms, including the meter on the Sweat Loop Farm. A totalizing flow meter, which was made by MiCrometer, was installed at the Sweat Loop Farm in June 1997. Mr. Hare acknowledged that he was familiar with MiCrometer meters and would be aware if the MiCrometer flow meter on the Sweat Loop Farm was not functioning properly. Whenever metering devices on the various Goodson farms have malfunctioned in the past, Mr. Hare has taken the malfunctioning meter to a metering company to be fixed. Goodson began irrigating the Sweat Loop Farm in June 1997. Since that time, Goodson has been the sole water user of the well on the farm. In March 1999, Goodson began submitting to the District monthly pumpage reports for the groundwater withdrawals on the Sweat Loop Farm. Although some unmeasured withdrawals presumably occurred prior to March 1999, the Complaint does not identify these as being a violation. Mr. Hare and other supervisors are responsible for collecting the meter readings which go on the monthly pumpage reports and providing them to the District. The information on the reports includes the permit number; the last month's meter reading; the current month's meter reading; the total gallons of water pumped for the current month; the meter total; and the meter factor. To determine the average daily withdrawal on the Sweat Loop Farm, the District relied upon the calculations provided by Goodson as to the total gallons of water pumped for the month and divided this number by 30 days. From March 1999 through July 2001, these quantities were as follows: MONTH/YEAR AVERAGE DAILY PUMPAGE March 1999 April 1999 531,487 No data available May 1999 364,930 June 1999 0 July 1999 0 August 1999 57,410 September 1999 49,563 October 1999 222,667 November 1999 250,667 December 1999 755,003 January 2000 689,433 February 2000 695,073 March 2000 544,427 April 2000 305,153 May 2000 597,720 June 2000 0 July 2000 62,120 August 2000 86,370 September 2000 123,233 October 2000 602,020 November 2000 409,550 December 2000 145,823 January 2001 957,690 February 2001 890,213 March 2001 391,280 April 2001 467,640 May 2001 617,177 June 2001 0 July 2001 0 Under Rule 40D-2.041(1)(a)-(c), Florida Administrative Code, a water use permit was required for Goodson's withdrawals since the well's total withdrawal capacity is approximately 1,500 gpm, which is greater than 1,000,000 gpd; the annual average withdrawals exceeded 100,000 gpd; and the well has an outside diameter of 10 inches at the surface. The withdrawals on the Sweat Loop Farm were not authorized by the .001 permit since neither Goodson or Balm was a permittee under the permit. Even if Goodson could rely on the permit, which it cannot, pumpage data provided by Goodson reflects that the water withdrawals (except for nine months) were in excess of that authorized by the permit. On June 16, 2000, the District mailed a Notice of Non-Compliance for excessive water withdrawals to Goodson. The Notice indicated that if the pumpage values submitted by Goodson were incorrect, Goodson was to explain the error and provide corrected quantities. On June 26, 2000, the District received a written response to the Notice of Non-Compliance from the superintendent of the Sweat Loop Farm who indicated that the pumpage values were correct, and that the excess usage was due to a "serious drought condition" which had caused a "significant financial hardship on [the] farm." The response also indicated that Goodson would contact Mr. Haftel, owner of Balm, to request that he "revise the water use permit for spring crops." On November 22, 2000, the District mailed Goodson a Notice of Violation indicating that the quantities authorized by the .001 permit were still being exceeded and that the District might seek monetary penalties if Goodson failed to come into compliance within 30 days. Despite the foregoing Notice, Goodson continued to make withdrawals without a permit and in excess of the quantities formerly authorized under the .001 permit until August 2001 when a new permit was finally obtained. Issuance of a New Water Use Permit On January 2, 2001, the District received an application for a General Water Use Permit seeking to modify the .001 permit to increase the withdrawal quantities and to transfer the permit from B. Kendra Produce to Balm. "Seymour Haftel/ Balm Associates, Inc." was listed as the applicant, and "Donn Goodson" from " Goodson Farms" was listed as the contact or consultant. Mr. Haftel signed the application on behalf of Balm. Goodson assisted Balm in securing the permit for the Sweat Loop Farm because Goodson wanted more water for irrigation purposes. Section 2.1 of the Basis of Review for Water Use Permit Application, adopted and incorporated by reference by Rule 40D-2.091, Florida Administrative Code, provides that "[a]pplications for leased property, except property leased from the District, must be either a joint application in the name of the lessee and the property owner(s) or be only in the name of the property owner(s)." In a Request for Additional Information mailed to Balm on January 29, 2001, the District asked whether Goodson should be listed as co-applicant on the application. On April 27, 2001, Balm submitted a response which indicated that Goodson should not be listed as co-applicant. On August 6, 2001, the District issued Water Use Permit No. 200007135.002 (the .002 permit) to Seymour Haftel/Balm Associates, Inc. authorizing an increase in the annual average withdrawals to 224,300 gpd. The permit had an expiration date of September 29, 2009. The permit contained a number of special conditions, none of which were challenged by Balm. Unauthorized Withdrawals Under the .002 Permit Special Condition No. 2 of the .002 permit requires in part that the permittee: continue to maintain and operate the existing non-resettable, totalizing flow meter(s), or other flow measuring device(s) as approved by the Regulation Department Director, Resource Regulation, for District ID No(s), Permittee ID No(s)[,] G-1. Such device(s) shall maintain an accuracy within five percent of the actual flow as installed. Total withdrawal and meter readings from each metered withdrawal shall be recorded on a monthly basis and reported to the Permit Data Section, Records and Data Department, (using District forms) on or before the tenth day of the following month. In the event a permittee chooses not to use a totalizing flow meter, as required by Special Condition No. 2, the District will review information provided by the measuring device's manufacturer to determine if the measuring device would maintain a five percent accuracy as required by the Condition. The meters have to be monitored and calibrated periodically for accuracy. It is the permittee's responsibility to comply with the conditions of the permit, including Special Condition No. 2, which requires the submittal of accurate pumpage reports. Goodson submitted the meter readings on behalf of Balm beginning in September 2001, which covered the withdrawals for the month of August 2001. The District relied on the meter readings submitted by Goodson to determine the annual average daily pumpage calculation for the .002 permit. The calculation is a running 12-month average, whereby each month the annual average daily quantity is recalculated based on the previous 12-month pumpage. The running annual average daily pumpage and percentage of pumpage which exceeded the .002 permit from August 2001 through May 2002 are as follows: MONTH/YEAR ANNUAL AVERAGE DAILY PUMPAGE PERCENTAGE OVERPUMPED August 2001 378,462 69 percent September 2001 382,622 71 percent October 2001 376,687 68 percent November 2001 383,008 71 percent December 2001 379,212 69 percent January 2002 327,343 46 percent February 2002 321,530 43 percent March 2002 350,701 56 percent April 2002 356,013 59 percent May 2002 338,131 51 percent As the foregoing data reflects, the withdrawals from the Sweat Loop Farm were in excess of that authorized by the .002 permit from August 2001 through May 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order determining that Respondents are guilty of the charges in its Administrative Complaint and Order except as concluded in paragraph 48 above and endnote 2 below; that Respondents be required to submit an acceptable written plan (Compliance Plan) to the District for its consideration and approval within fourteen days after entry of the final order; that the Compliance Plan describe how Respondents shall achieve full compliance with the .002 permit; that the Compliance Plan include reductions in withdrawals, water conservation measures, and development and utilization of alternative resources; that the Compliance Plan establish deadlines for implementation and completion of corrective actions; that full compliance be achieved within 120 days after entry of the final order; and that any failure of Respondents to comply with any provision of the Compliance Plan shall constitute a violation of the final order. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2002.
Findings Of Fact The subject application requests a water use permit from the Central and Southern Florida Flood Control District (FCD) for the supplemental irrigation of 145 acres of citrus lands located in Orange County. Received into evidence at the hearing were the public notice of hearing appearing in the Sentinel Star, permit application number 21424 with an attached report and the Staff Report of the FCD, prepared by Nagendra Khanal. The applicant requested an annual allocation of water in the amount of 120.15 acre-feet or 9.94 inches per year, for a period of twenty (20) years. The Staff Report recommends the issuance of a permit for said amount, with maximum monthly pumpages not to exceed 49.8 acre-feet or 4.13 inches, the permit to expire on January 15, 1978. Several further special provisions were recommended on pages 4 & 5 of the Staff Report, which report is attached hereto. There is no dispute between the applicant and the FCD over the technical aspects of the Staff Report. The protests of the applicant center around the length of the permit and some of the special provisions recommended in the Staff Report, which the applicant feels are vague and ambiguous. Mr. James A. Hinson, the applicant's corporate secretary, felt that the FCD had sufficient data and statistics as to the water resources and agricultural usage within the area to sustain the granting of a twenty year permit. It was further felt that the issuance of a two-year permit for the purpose of gathering information as to the quantity of use would tend to prompt higher usage and even lead to falsification of pumpage records on the part of agricultural users so as to assure the issuance of future permits. The applicant was also concerned with the costs of applying for another permit in two years. Mr. Nagendra Khanal, a hydrologist with the FCD, explained that the purpose of the two-year permit was to obtain information from agricultural users in the area as to the amount of water used and the effect of such usage on the Florida aquifer system. Since the outset of regulatory provisions, the FCD has set the same termination date for each permit for agricultural use within each of the basins. At that expiration time, the pumpage records for all users in the area will be established and present experimental estimates can then be compared with actual usage. Little is known by the FCD about how the Florida aquifer system operates and the data presently in use are experimental. Since all permits within each basin will expire on the same date, the entire basin can then be evaluated at one point in time. It was felt that if falsification of pumpage records were to occur, it could probably be detected by data currently available to the FCD. It was further opined by Mr. Khanal that at, the expiration date of all permits issued in each basin, an automatic conversion into new permits would occur at little or no cost to the applicant. With regard to the special provisions recommended in the Staff Report, Mr. Hinson expressed concern over the manner of compliance. Specifically, he desired more information on the type of equipment or devises required by the FCD when it calls for "minimum head pressures", and "a measuring device on each of the three wells." He also desired information as to the times of year the water quality analyses were to be performed. Mr. Khanal explained that no regulatory criteria had been established by the FCD with regard to pumpage and that the minimum type of measuring device, such as a time clock, on each of the wells would suffice. Further specifications will be supplied to the applicant upon request. It was explained by Khanal that the water quality analyses should be performed once before the rainy season (at the end of May) and once after the rainy season (at the end of October). There was some confusion over the inclusion of the parameter of "specific conductivity" within the definition of a standard complete water quality analysis. Finally, Mr. Khanal listed two amendments to be made in the Staff Report. On page 2, under "B. Existing Facilities", "3,500 gpm" should read "3,600 gpm." The last item on the chart on page 3 of the Staff Report should read "2 in 10 Year Drought" in lieu of "1 in 10 Year Drought."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Application No. 21424 be granted and that a permit be issued in accordance with the recommendations and provisions set forth in the Staff Report, as amended. Due to the apparent confusion over the inclusion of "specific conductivity" as a parameter to be included within the definition of a standard complete analysis, it is further recommended that the Staff make further inquiry into its necessity. If the Staff then concludes that "specific conductivity" is necessary to obtain a complete water quality analysis, it is recommended that it remain on the list of parameters. Respectfully submitted this 5th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1976 COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Akerman, Senterfitt, Eidson and Wharton 17th Floor CNA Building Orlando, Florida Stephen A. Walker, Esquire Post Office Box V West Palm Beach, Florida 33402
The Issue The issue is whether the Southwest Florida Water Management District (District) should issue water use permit (WUP) No. 2004912.006 to the City of Lakeland (City), and if so, how much water should be allocated under the permit and what conditions should be imposed on the allocation, particularly in regard to withdrawals from the City's Northeast Wellfield (NEWF).
Findings Of Fact Introduction This is an unusual case in that the District gave notice of its intent to issue a permit that the City does not want and that the District staff testified that the City is not even entitled to based upon the information submitted prior to and at the final hearing. That said, there is no disagreement between the parties that a permit should be issued to the City. Indeed, despite the District Staff's testimony that the City failed to provide “reasonable assurances” prior to or at the final hearing on a variety of issues, the District takes the position in its PRO that a permit should be issued to the City, subject to various conditions and limitations. There is also no disagreement between the parties that the permit should include an allocation of 28.03 mgd from the City’s Northwest Wellfield (NWWF). The main areas of disagreement between the District and the City are the duration of the permit; the total allocation of water under the permit; and, perhaps most significant, the total allocation from the NEWF. Parties The City is an incorporated municipality located in Polk County. The City is within the boundaries of the District and is within the Southern Water Use Caution Area (SWUCA) designated by the District. The City is the applicant for the WUP at issue in this case, No. 20004912.006. The City operates a public water utility that provides potable water and wastewater services to customers in and around the City. The utility’s water service area extends beyond the City limits into surrounding unincorporated areas of Polk County. The District is the administrative agency responsible for conservation, protection, management and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. The District is responsible for reviewing and taking final agency action on the WUP at issue in this case. Stipulated Facts The parties stipulated that the City’s substantial interests have been adversely affected by the District’s intent to issue the proposed permit, and that the proposed permit is different from the permit that the City applied for. The parties also stipulated that there is reasonable assurance that the City’s proposed water use will not interfere with a reservation of water as set forth in Florida Administrative Code Rule 40D-2.302; that the proposed use will not significantly induce saline water intrusion; that the proposed use will incorporate the use of alternative water supplies to the greatest extent practicable; and that the proposed use will not cause water to go to waste. The City’s Wellfields Overview The City obtains the water that its water utility provides to its customers from two wellfields, the NWWF and the NEWF. The NWWF is located north of Lake Parker in close proximity to Interstate 4 and Kathleen Road. It provides water to the Williams Water Treatment Plant, from which the water is distributed throughout the City water utility’s service area. The NWWF is located on the Lakeland Ridge, which is a geographic feature that is approximately 250 to 260 feet above sea level. The Lakeland Ridge has a thick clay intermediate confining unit that isolates the surficial aquifer from the underlying aquifers. The NEWF is located to the north of Interstate 4, adjacent to Old Polk City Road. It provides water to the Combee Water Treatment Plant (Combee), from which the water is distributed throughout the City water utility’s service area. The NEWF is located at an elevation of approximately 135 feet above sea level. The surficial aquifer at the NEWF is relatively thin, and the intermediate confining unit at the NEWF is not as thick as it is at the NWWF. The Upper Floridan Aquifer (UFA) begins at approximately 65 below land surface at the NEWF. The City’s water treatment plants are traditional lime softening plants and are not able to treat brackish groundwater or surface water to the extent necessary for human consumption. It would be cost-prohibitive to implement a process to treat brackish water at the plants. Relevant Permitting History The City’s water utility has been in operation for more than 100 years, and the NWWF has been in operation since at least the early 1980’s. The earliest permit for the NWWF contained in the record is permit No. 204912, which was issued by the District in January 1987. The permit authorized average annual withdrawals of 28.3 mgd, and had an expiration date of January 1993. The NEWF was first permitted by the District in December 1989. The permit, No. 209795.00, authorized the City to pump an average of 9.0 mgd from the NEWF. The permit had a six-year duration, with a December 1995 expiration date. The permits for the NWWF and the NEWF were combined into a single permit in October 1993. The permit, No. 204912.03, authorized the City to pump a total of 28.1 mgd, with 9.0 mgd from the NEWF. The permit had a 10-year duration, with an October 2003 expiration date. In December 2002, the City's WUP was administratively modified pursuant to the District’s SWUCA rules. The modified permit, No. 20004912.004, did not change the permitted quantities at the NEWF or the 2003 expiration date, but the total allocation was reduced to 28.03 mgd. In October 2003, prior to the expiration of the existing permit, the City submitted an application to renew and modify its WUP permit. The application requested a 20-year permit with a total allocation of 32.8 mgd, with up to 16.0 mgd from the NEWF. During the permit review process, the City amended its application to increase the requested total allocation by 4.0 mgd (from 32.8 mgd to 36.8 mgd) and to decrease the requested duration of the permit by five years (from 2023 to 2018). The 36.8 mgd requested by the City was to be allocated between the NWWF (28.03 mgd) and the NEWF (8.77 mgd). The City supplemented its application during the permit review process in response to multiple requests for additional information and clarification from the District. The information provided by the City in support of the application is extensive; the “permit file” received into evidence consisted of approximately 2,500 pages, and the entire file is approximately twice that size.2 The review process culminated in what the District staff considered to be a “negotiated permit”3 that would initially authorize pumping of 33.03 mgd, with 28.03 from the NWWF, 1.5 mgd from the NEWF, and 3.5 mgd from a production well to be constructed at Combee. The proposed permit includes a phasing schedule that would allow for increased withdrawals -- up to 35.03 mgd total and 4.0 mgd from the NEWF4 -- if the City is able to demonstrate to the District’s satisfaction that the increased pumping will not cause adverse environmental impacts. The District gave notice of its intent to issue the proposed permit on December 29, 2006, and the permit was placed on the “consent agenda” for the District Governing Board’s meeting on January 30, 2007. On January 23, 2007, before the proposed permit was considered by the Governing Board,5 the City timely filed a petition challenging the proposed permit. The petition alleges that the proposed permit does not allocate sufficient water to meet the City's projected population demands in 2018 and that it does not allocate water quantities from the NEWF and the NWWF in the manner requested by the City. The NEWF The NEWF is approximately 880 acres in size. Wetlands comprise approximately half of the site. The NEWF is located within the boundaries of the Green Swamp, which is an area of critical state concern (ACSC) designated under Chapter 380, Florida Statutes. The Green Swamp is a hydrologically and environmentally important feature of central Florida encompassing thousands of acres of cypress wetlands, marshes, and forests. In 1992, a task force recommended that public water supply wellfields “of capacity greater than 1.8 mgd (average 3.6 mgd maximum)” from the UFA be discouraged in the Green Swamp ACSC in favor of wells from the Lower Floridan Aquifer in order to “mitigate drawdown impacts to the surficial aquifer system and resulting dehydration of wetlands . . . .” There is no evidence of that recommendation being formally adopted by the District or any other governmental agency, and the District does not have more stringent permitting criteria for WUP applications in the Green Swamp, except that it considers potential adverse impacts to all isolated wetlands and not just those larger than one-half acre in size.6 The City installed five 16-inch production wells at the NEWF, along with a number of associated monitoring wells. The production wells, which are cased to approximately 120 feet with a total depth of approximately 750 feet, pump water from the UFA. Pumping at the NEWF started in October 2005. The City has been pumping 4.0 mgd from the NEWF since that time. The City has spent over $34 million to bring the NEWF into service. The costs directly related to the acquisition of the NEWF site and the installation of the wells at the site account for approximately $7.6 million of that amount; the remainder of the costs are for associated infrastructure, such as the installation of water lines from the NEWF site and the construction of Combee. The wetlands on the NEWF site are predominantly isolated cypress wetlands, although there are some connected systems. Isolated wetlands are more susceptible to impacts from water deprivation than are connected wetland systems. The uplands on the NEWF site consist primarily of open pasture and fields and areas of planted pines. Extensive drainage improvements were constructed on the NEWF site between 1941 and 1980 when the site was being used as improved pastureland for cattle grazing and managed woodland for logging and silviculture. The improvements included the construction of a network of drainage ditches, culverts, roads, a grass landing strip, and a gas pipeline. The intent and effect of the drainage improvements was to remove surface water from the onsite wetlands. Historical aerial photographs show that these efforts were successful. The wetlands on the NEWF were adversely impacted by the drainage improvements, but for the most part, they are still functioning, albeit low-quality wetlands. The extensive ditching on the NEWF site continues to have an adverse impact on the wetlands even though the ditches have not been maintained and do not function as efficiently as they once did. The planted pine trees on the NEWF site may also be adversely affecting the wetlands through increased evapotranspiration from the surficial aquifer. However, the evidence was not persuasive regarding the extent of the impact from evapotranspiration. The present condition of the wetlands at the NEWF is not the result of recent activity. The biological indicators in the wetlands (e.g., adventitious roots on cypress trunks, large oak trees in the wetlands, red maple trees in areas that had at one time been dominated by cypress trees) show that the degraded condition of the wetlands dates back decades. The progressive draining and degradation of the wetlands caused by the ditching and other drainage improvements constructed on the NEWF site is apparent in the historic aerial photographs of the site. The size of the wetlands and the “hydrologic signatures” (e.g., standing water around the rims of wetlands and across the site, extensive cypress canopies, etc.) visible on earlier aerial photographs are less visible or non- existent in more recent aerial photographs. The wetlands on the NEWF site have shown no biological indicators of impacts from the pumping at the NEWF that started in October 2005. This does not necessarily mean that the pumping is not impacting the wetlands because the parties' experts agree that it can take many years for such biological indicators to appear. The more persuasive evidence establishes that the historical drainage improvements on the NEWF site were the primary cause of the degraded condition of the wetlands.7 The more persuasive evidence also establishes that unless altered, the drainage improvements on the NEWF site will continue to have an adverse effect on the wetlands. The City proposed a conceptual Wetland Improvement Plan (WIP) that is designed to restore and enhance the wetlands on the NEWF. A central component of the WIP is the reengineering and alteration of the drainage features by installing “ditch blocks” in some areas and culverts in other areas. The WIP also includes not replanting the pine trees on the NEWF site once the existing planted pines are harvested. The ditch blocks and other modifications to the drainage features are intended to hold water on the NEWF site and redirect it to the wetlands. This will help to hydrate the wetlands, increase soil moisture levels, and allow more water to percolate into the surficial aquifer following rain events. The District staff expressed some concerns with the City’s WIP at the final hearing, but acknowledged that the plan’s “conception . . . has a lot of merit.” Indeed, in its PRO, the District recommends the “installation of ditch blocks and similar measures at the [NEWF] site.” The WIP, if properly implemented, has the potential to enhance the wetlands by returning them to a more natural condition. The City will likely need an Environmental Resource Permit (ERP) from the District before any system of ditch blocks can be installed. The details of the WIP can be worked out during the ERP permitting process.8 A good monitoring plan is part of providing reasonable assurances. The parties agree that a monitoring plan should be included as a permit condition, and the EMMPs attached to the parties’ respective PROs appear to be materially the same. The City has monitored the wetlands at the NEWF since 1994, pursuant to a specific condition in the 1993 WUP permit. The methodology used by the City to monitor the wetlands was approved by the District, and despite the fact that the City has submitted biannual monitoring reports to the District for almost 14 years, the District expressed no concerns regarding the methodology or results of the monitoring until recently. The District commenced its own wetland assessment procedure at the NEWF in May 2007, which included setting “normal pools” in several of the wetlands. “Normal pool” describes the level at which water stands in a wetland in most years for long enough during the wet season to create biological indicators of the presence of water. The establishment of normal pools was part of the District’s efforts to establish the “existing natural system” against which any post-withdrawal adverse impacts at the NEWF would be measured in accordance with Section 4.2 of the Basis of Review for Water Use Permit Applications (BOR).9 Normal pools could not be established in several of the wetlands because there was no measurable standing water above the surface in the wetland. District staff observed similar conditions –- i.e., no standing water in the wetlands –- on at least one occasion following a significant rain event prior to the start of pumping at the NEWF. The District does not have a rule governing the setting of normal pools, but the City’s experts did not take issue with the normal pools set by the District or the methodology used by the District to set the normal pools. The EMMP proposed by the City is an extensive monitoring plan that incorporates a series of onsite monitoring wells, wetland monitoring stations for vegetation and hydrogeology, monitoring of pumping rates and pumping data, and monitoring of rainfall data. The EMMP will make use of the extensive data that has been collected on the NEWF site since the 1990’s as well as the normal pools set by the District, and if properly implemented, the EMMP will detect any potential adverse impacts as they occur to allow for remedial mitigation. The District staff acknowledged at the final hearing that the EMMP proposed by the City “with some minor modifications” is an appropriate plan to monitor changes in the wetlands at the NEWF. The necessary "minor modifications" were not explained at the final hearing, and as noted above, there does not appear to be any material difference in the EMMPs attached to the parties’ respective PROs. The Green Swamp is generally viewed as a “leaky” area, with little or no confinement between the surficial aquifer and the Floridan aquifer. Regional data, including studies by the United States Geologic Survey (USGS) and the District, reflect that the NEWF is located in a “transitional area” between areas of little or no confinement to the north, northwest, and east of the NEWF and areas of thicker confinement to the south. However, at least one study (published in 1977 USGS report) shows the NEWF in an area designated as "poor" for its relative potential for downward leakage. Regional data may be used to gain knowledge about the aquifer properties at a potential well site, but such data is not a valid substitute site-specific data. Indeed, the location of the NEWF in a “transitional area” makes site-specific data even more important. The City used geologic cross-sections (e.g., soil borings and core samples) at the NEWF to determine the site’s lithologic characteristics. By contrast, the District relied primarily on USGS reports and other regional data to postulate as to the lithologic characteristics of the NEWF. As a result, the City’s position regarding the lithologic characteristics of the NEWF was more persuasive than the District’s position. The lithology of the NEWF site consists of a shallow, sandy surficial aquifer, which extends to a depth of 3 to 5 feet, proceeding downward to sandy clay and clay sand semi- confining layers, alternating with impermeable clay units, interspersed with an intermediate aquifer composed of sandy clays and clay sands that contain water, proceeding downward to the limestone of the UFA. The presence of clay layers between the intermediate aquifer and the UFA, together with clay layers between the intermediate aquifer and the surficial aquifer, provide two layers of protection between the pumped aquifer and the surficial aquifer and wetlands, and serve to ameliorate any impacts to the surficial aquifer caused by withdrawals from the UFA. “Leakance” is a measure of vertical conductivity that describes the rate at which water flows through a confining unit. As a result, leakance is one of the most important factors to consider when modeling surficial aquifer impacts and potential wetland impacts from groundwater pumping. Generally, a higher leakance value is an indication of a “leakier” system with less confinement between the surficial aquifer and the UFA. The “leakier” the system, the greater the impacts of pumping on the surficial aquifer will be. The District contends that the confining unit underlying the NEWF is “leaky” and that the pumping at the NEWF is likely to directly and adversely affect the onsite wetlands. However, the more persuasive evidence establishes that the lower leakance value derived by the City based upon the site-specific lithology of the NEWF and the data from the aquifer performance tests (APTs) conducted at the NEWF is more accurate than the higher leakance value urged by the District. The purpose of an APT is to determine the hydrologic parameters of an aquifer. In particular, an APT is used to determine the transmissivity, leakance, and storage values of the aquifer. Transmissivity is a measure of how easily water flows through the ground, and storage is a measure of the amount of water in the porous spaces of the aquifer. Generally, a higher transmissivity value and a lower storage value indicate better confinement. There have been three APTs conducted at the NEWF. The first APT (APT-1) was conducted in 1989 as part of the initial permitting of the NEWF. A high transmissivity value and a low storage value were calculated in APT-1. A leakance value was not calculated. The results of APT-1 were presented to the District to justify the City’s request to pump 9.0 mgd from the NEWF, which the District approved. The 1993 permit combining the NWWF and the NEWF required the City to conduct a long-term APT in order to “determine the leakance parameter between the surficial and intermediate aquifers and the leakance parameter between the intermediate and Upper Floridan aquifers.” The permit stated that if the hydrologic parameters obtained in the APT were different from those used in the model submitted in support of the initial WUP, the City would have to revise the model and, if necessary, modify the WUP to reduce withdrawals. This second APT (APT-2) was a seven-day test conducted by the City in January 2001 in accordance with a methodology approved by the District. An “exceedingly low” leakance value of 4.5 x 10-4 gallons per day per cubic foot was calculated in APT-2. The transmissivity and storage values calculated in APT- 2 were essentially the same as the values calculated in APT-1. The District expressed concerns with the results of APT-2, and in December 2001, the District advised the City that it should “proceed with caution during the planning of infrastructure (pipelines) for the [NEWF]” because the “wellfield may not be able to produce the volume of water the City has stated that would like from the wellfield, without causing adverse impacts.”10 Based upon these concerns, the District conducted an APT (APT-3) at the NEWF in April and May 2003. The parties’ experts agree that data from APT-3 is reliable, but the experts disagree in their interpretation of the data, particularly in regards to the leakance value. The City’s experts calculated a leakance value of 1.4 x 10-4 feet per day per foot, which is a low leakance value. The expert presented by the District, Dann Yobbi, calculated a higher leakance value of 3.4 x 10-3 feet per day per foot, which suggests relatively “leaky” aquifer. The leakance value calculated by the City’s experts is more persuasive than the value calculated by Mr. Yobbi because Mr. Yobbi did not “de-trend” the data from APT-3 based upon the general declines in water levels occurring at the time of APT-3. Indeed, Mr. Yobbi testified that he is in the process of revising his report on APT-3 to address this issue and he acknowledged that the surficial aquifer showed only a “slight response” to the pumping during APT-3. The leakance value calculated by the City’s experts in APT-3 is consistent with the leakance value calculated in APT-2. The transmissivity and storage values calculated in APT-3 are also consistent with the values calculated in APT-1 and APT-2. The reliability of the leakance values and other aquifer parameters calculated by the City’s experts for the NEWF is confirmed by water level data compiled by the City pursuant to the monitoring requirements in the existing WUP. The water level data was collected from monitoring wells at the NEWF in the surficial aquifer, the intermediate aquifer, and the UFA. The City began collecting this data in 1994 and it continues to collect and report the data to the District as required by the existing WUP. The water level monitoring data reflects that the surficial aquifer at the NEWF responds almost immediately to rain events. By contrast, the intermediate aquifer and UFA show a more subdued response to rainfall events, which is indicative of good confinement, especially between the UFA and the surficial aquifer. The water level monitoring data shows that rainfall or lack of rainfall is the major controlling factor relative to the rate of surficial aquifer recharge at the NEWF. The water level monitoring data since pumping began at the NEWF shows that the pumping at 4.0 mgd is having a minimal impact on the surficial aquifer at the NEWF. Indeed, the more persuasive evidence establishes that the general decline in water levels that has been observed in the monitoring wells at the NEWF over the past several years is more likely than not attributable to the severe drought in the area and the onsite drainage features, and not the pumping at the NEWF.11 Moreover, the more persuasive evidence shows that following the start of pumping at the NEWF in October 2005, the water levels in the surficial, intermediate, and Floridan aquifers returned to the historic patterns of up and down response to rainfall events shown throughout the thirteen-year period of record: the surficial aquifer fills quickly (as it receives the rainwater directly) and empties quickly (through a combination of surface drainage, evapotranspiration, evaporation, and leakage), while the UFA responds with more gradual rising and falling (as water enters the aquifer through recharge areas and slowly percolates into the aquifer through more confined areas). The analysis of the water level data collected during APT-3 showed a similar trend in the rates of decline in the surficial aquifer as were reflected in the hydrographic record of the monitoring well data collected by the City since 1994. The natural, post-rainfall rate of decline under non-pumping conditions was consistent with the rate of decline observed during pumping conditions in APT-3. In sum, the interpretation of the water level data by the City’s experts was more persuasive than the interpretation by the District’s experts. Modeling of Predicted Drawdowns and Impacts The City utilized two different models to predict drawdowns from the proposed pumping at the NWWF and NEWF: the USGS “Mega Model” and the District’s District-Wide Regulation Model (DWRM). The models incorporated regional data published by the USGS and the District as well as site-specific data from the NEWF, including the lithologic information collected through soil borings and the hydrologic parameters of the aquifers calculated in APT-3. The models were calibrated and de-trended to remove “background conditions” (e.g., regional water level declines) so that the models would only show the predicted effects of the pumping. Once the calibration was complete, the models were run to simulate the effect of the pumping on the groundwater flows in the area. The models produced contour maps that showed the predicted drawdowns in the surficial aquifer as a result of the pumping. The USGS Mega Model predicted that pumping the NEWF at 8.77 mgd would result in drawdowns of approximately 0.5 foot in the surficial aquifer in and around the NEWF. The DWRM model predicted a 0.18 foot drawdown in the surficial aquifer in and around the NEWF when pumping the NEWF at 4.0 mgd, and a drawdown of 0.4 foot when pumping at 8.77 mgd. The same models were used to predict the “cumulative” drawdowns by taking into account pumping by existing legal users as well as the pumping at the NWWF. The cumulative models assumed pumping of 36.8 mgd from the City’s wellfields. The USGS Mega Model predicted that cumulative drawdowns in the surficial aquifer in and around the NEWF would be an additional 0.3 feet, with 8.77 mgd of pumping at the NEWF. The DWRM model predicted that the cumulative drawdowns in the surficial aquifer in and around the NEWF would be 0.4 foot with 4.0 mgd of pumping at the NEWF, and 0.6 foot at 8.77 mgd of pumping at the NEWF. The City utilized the 1995 data set of existing legal users in its cumulative DWRM modeling because that was the data set provided by the District. The difference between the 1995 data set and the more current 2002 data set is on the order of 20 mgd, which is inconsequential in comparison to the 1.1 billion gallons per day of withdrawals included in the model that are spread over the geographic extent of the District. The predicted drawdowns in the surficial aquifers in and around the NEWF would be considerably greater if the hydrologic parameters calculated by Mr. Yobbi were used in the DWRM model. For example, the District’s modeling predicted drawdowns between 1.0 and 1.2 feet in the surficial aquifer in and around the NEWF when pumping 1.5 mgd from the NEWF, 3.5 mgd from Combee, and 28.03 mgd from the NWWF. The wetlands experts presented by the parties agreed that the level of drawdown predicted by the City at the NEWF has the potential to adversely impact the wetlands on the site. The experts also agreed that there is no bright line as to the amount of drawdown that will adversely impact the wetlands. The City’s expert, Dr. Michael Dennis, testified that drawdowns in the surficial aquifer between 0.18 foot and 0.5 foot “probably” would not affect the wetlands at all, or at least “not measurably.” He also testified that drawdowns between 0.5 foot and one foot “are the drawdowns that you need to be concerned about.” The District’s expert, John Emery, testified that a drawdown in the surficial aquifer of 0.4 foot “could” adversely affect the wetlands if no mitigation is provided, but that a drawdown of 0.2 to 0.3 foot might not.12 The WIP is expected to increase the amount of water that gets to the wetlands on the NEWF site. However, the extent to which the WIP will increase the water levels in the wetlands and offset the predicted drawdowns in the surficial aquifer is unknown at this point. Limiting pumping at the NEWF to 4.0 mgd is reasonable and prudent based upon the uncertainty regarding the effectiveness of the WIP and the experts’ testimony regarding the level of drawdowns that likely would, and would not, adversely affect the wetlands at the NEWF. In sum, the more persuasive evidence establishes that the drawdown predicted at 4.0 mgd of pumping –- 0.18 foot (individually) and 0.4 feet (cumulatively) –- is not likely to adversely impact the already significantly degraded wetlands at the NEWF, particularly if the WIP is properly implemented. Demand Projections The City did not use the full 28 mgd allocated under its existing WUP. It pumped only 21 mgd in the 12 months preceding October 2003, when the permit was scheduled to expire; it pumped only 26 mgd in 2006; and the pumping for 2007 was expected to be approximately 1 mgd lower than the pumping in 2006. The City's WUP application contained population and demand projections for different years in the future. For 2014 (the permit expiration date proposed by the District), the “functional population”13 of the service area was projected to be 183,264 and the average demand was projected to be 29.5 mgd; for 2023 (the original permit expiration date requested by the City), the projections were 203,721 people and 32.8 mgd; and for 2018 (the permit expiration date now requested by the City), the projections were 192,176 people and 30.9 mgd. The projections in the WUP application were prepared in 2003, and City's primary consultant, Charles Drake, testified that the data was “accurate” and “reliable.” However, more recent data shows that the population projections in the WUP application were slightly understated. The more recent data is contained in the “Water Services Territory Population Estimates and Projections” reports prepared by the City's utility department in March 2006 and March 2007. The reports include estimates of the functional population for prior years, and projections of the functional population for future years. The estimates reflect the “actual” population for a given year in the past, whereas the projections reflect the “expected” population for future years. The estimates and projections in these reports, like the projections in the WUP application, were prepared in accordance with the methodology contained in the BOR. The District did not take issue with the projections in the reports or the WUP application. The estimated functional population of the service area in 2003, 2004, 2005, and 2006 exceeded the population projected for those years in the WUP application. On average, the projected populations for each year understated the “actual” populations by approximately 3,500 persons.14 Likewise, the population projections for future years in the March 2007 report are higher than the population projections for the same years in the WUP application. For example, the report projects that the functional population of the service area in 2014 will be 191,208 (as compared to 183,264 in the WUP application), and that population in 2018 will be 203,247 (as compared to 192,176 in the WUP application). The City presented “revised” population projections at the final hearing in City Exhibit 140. The revised projections were based on the projections in the March 2006 report, but also included data from the “water allocation waiting list” that is part of the City’s concurrency management system that was created by the City in response to legislation passed in 2005 requiring local governments to allocate and approve requests for water for new development. The population projections in City Exhibit 140 are 234,959 in 2014; 247,390 in 2018; and 264,556 in 2023. These projections include an additional 43,471 persons related to new development in the concurrency management system, as well as the additional 2,600 to 3,000 persons projected per year in the WUP application and the March 2006 report. The City failed to establish the reasonableness of the revised population projections. Indeed, among other things, the evidence was not persuasive that the additional population attributed to the new development in the concurrency management system is not already taken into account, at least in part, in the annual population increases projected in the March 2006 report.15 The most reasonable population projections for the service area of the City's utility are those in the March 2007 report.16 The record does not contain demand projections directly related to the population projections in the March 2007 report. However, demand projections for those population projections can be inferred from the WUP application (City Exhibit 1(a)(2), at 0036) and City Exhibit 140 (at page 0015). The 2014 projected population of 191,208 in the March 2007 report roughly corresponds to the projected population for 2018 in the WUP application (192,176) for which the projected demand was 30.9 mgd; and it also roughly corresponds to the projected population for 2008 in City Exhibit 140 (193,001), for which the projected demand was 28.7. Thus, in 2014, it is reasonable to expect that demand will be between 28.7 and 30.9 mgd. The 2018 projected population of 203,247 in the March 2007 report roughly corresponds to the projected population for 2023 in the WUP application (203,721) for which the projected demand was 32.8 mgd; and it also roughly corresponds to the projected population for 2009 in City Exhibit 140 (201,983), for which the projected demand was 30.2 mgd. Thus, in 2018, it is reasonable to expect that demand will be between 30.2 and 32.8 mgd. The demand projections in the WUP for 2014 (29.5 mgd) and 2018 (30.9 mgd) fall within the range inferred for the populations in the March 2007 report. Thus, even though the population projections in the WUP application for 2014 and 2018 are understated, the demand projections for those years in the WUP are still reasonable. The demand projections in City Exhibit 140 –- 35.3 mgd in 2014 and 36.6 mgd in 2018 –- are overstated as a result of unreliable population projections upon which they are based. Other Issues Duration of Permit The 1987 permit for the NWWF had a six-year duration, as did the original 1989 permit for the NEWF. The 1993 permit had a 10-year duration, but that permit did not increase the amount of authorized withdrawals; it simply combined the authorizations for the NWWF and the NEWF into a single permit. In this case, the City is requesting a permit that expires in 2018, which was a 15-year duration at the time the application was filed, but now is a 10-year duration. The District is proposing a permit with a six-year duration, expiring in 2014. The District is authorized to approve a WUP with a duration of up to 50 years. The District’s rules provide that the duration of the permit is to be determined based upon “the degree and likelihood of potential adverse impacts to the water resource or existing users.” The District’s rules require that in order for the District to approve a permit with a duration of more than 10 years, the applicant is required to present sufficient facts to demonstrate that such a permit is “appropriate.” Section 1.9 of the BOR provides “guidelines” regarding the duration of permits. The guidelines in the BOR are not binding on the District, but the nearly identical language in Florida Administrative Code Rule 40D-2.321 is binding on the District. The BOR provides that a six-year permit is to be issued for renewal permits “with modification to increase the quantity withdrawn by more than or equal to 100,000 gpd or 10% or more of the existing permitted quantities, whichever is greater.” The BOR and Florida Administrative Code Rule 40D- 2.321(2)(b) also provide that a six-year permit is to be issued “where the potential for significant adverse impacts are predicted.” The renewal permit that the City is seeking requests an increase of 8.7 mgd (from 28.1 mgd to 36.8 mgd) over the existing permitted quantities, which exceeds the 10 percent threshold in Section 1.9 of the BOR. Moreover, there is a potential for significant adverse impact from the renewal permit that the City is seeking. Accordingly, a six-year permit is appropriate under the District’s rules and the guidelines in the BOR. The City failed to demonstrate why a longer permit duration is appropriate under the circumstances of this case. District staff testified at the final hearing that the permit term should be calculated from the date the permit is issued, which will be some point in 2008. Therefore, the permit should have an expiration date of 2014. Offsite Impacts The City used the modeling described above to predict the drawdown in the UFA from the proposed pumping in order to determine whether there will be any adverse impacts on existing legal users. The predicted drawdown in the UFA in the vicinity of the NEWF ranges from 1.6 feet to 2.4 feet with 4.0 mgd of pumping at the NEWF, and between 3.4 feet and 5 feet with pumping at 8.77 mgd. The predicted drawdown in the UFA in the vicinity of the NWWF ranges from 10.0 to 14.0 feet, with 28.03 mgd of pumping at the NWWF.17 These predicted drawdowns are not expected to have any adverse impacts on existing legal users that have wells in the UFA. Most permitted wells in the UFA use vertical turbine pumps, which can easily accommodate fluctuations in water levels of five feet or more. The City has not received any complaints from existing users since it began pumping 4.0 mgd at the NEWF in October 2005. The pumping at the NWWF, which has been ongoing for more than 20 years, has not caused any adverse impacts to existing legal users. The City is required under the existing WUP to respond to any adverse impact complaints from existing legal users, and it is required to implement mitigation, as needed. In short, City is required to do whatever is necessary (e.g., relocating or increasing capacity of pump, lowering pipes) to return any well impacted by the pumping to its prior function. The City did not evaluate the potential impacts of its proposed pumping on unpermitted wells because the District does not maintain a database of unpermitted wells. However, the City acknowledges that if its pumping impacts an unpermitted well, it will be obligated to mitigate those impacts in the same manner that it is required to mitigate impacts to existing permitted users. The predicted drawdowns for water bodies in the vicinity of the NWWF and the NEWF that have designated Minimum Flows and Levels (MFLs) -- Lake Bonny, Lake Bonnett, and the Cone Ranch wetlands -- are minimal, on the order of 0.1 foot. The City evaluated the impacts of pumping on contaminated sites listed by the Department of Environmental Protection (DEP) in the vicinity of the NWWF and NEWF. Based upon the results of the modeling conducted by the City, there is no reason to expect that pumping at the NWWF and/or NEWF will have any measurable impact on those sites or lead to pollution of the aquifer. Potential Impacts of NWWF Pumping The only concern expressed by the District with respect to the pumping at the NWWF relates to the potential environmental impacts of the pumping on Lake Bonny and Lake Bonnett. The City agreed to include those lakes in its EMMP. Combee Combee is located approximately four miles south of the NEWF. There is a relatively thick clay confining unit at Combee, which, according to the District, makes it a better location for water withdrawals than the NEWF. The District conducted an APT at Combee in 2006. The hydrologic parameters derived from the APT, and the “preliminary modeling” performed by the District show that the City may be able to withdraw at least 3.0 mgd from wells at Combee. The proposed permit authorized pumping of 3.5 mgd from Combee. The proposed permit also included a phasing schedule pursuant to which pumping at Combee would be decreased to 3.0 mgd if pumping at the NEWF reached 4.0 mgd. The City expressed an interest in obtaining water from Combee throughout the permitting process. However, the City represented at the outset of the final hearing that the Combee well is “off the table because the City wishes to maximize the withdrawal allocation from [the NEWF].” The City stated in its PRO that it is “willing to consider permitting a production well at [Combee] as a potential mitigation resource, should unexpected adverse impacts require the City to divert production to a back-up resource.” The District stated in its PRO that the Combee well is “available for mitigation purposes," and that the City “should be encouraged to apply for a WUP for withdrawals from Combee up to 3.0 mgd to provide additional mitigation for pumping from the [NEWF].” Pump rotation Rotation of pumping between the wells in a wellfield is a standard practice, and it can be an effective mitigation technique. The City utilizes well rotation programs at the NWWF and the NEWF in order to minimize the stress on the production aquifers. Rotating pumping between the production wells at the NEWF is particularly appropriate because several of the wells are located in very close proximity to wetlands. Rotating the pumping will help to minimize the potential for adverse impacts to the wetlands. The actual rotation schedule is an operational decision that is made based upon observed conditions at the wellfield site, rather than something that is typically included in the WUP. Conservation and Reuse The City has a four-tiered conservation rate structure, modeled after the District’s graduated water-rates prototype. The rate structure imposes higher unit costs as individual consumption increases, thereby discouraging wasteful uses of water. The City has a comprehensive leak detection program aimed at preventing the loss of water within the City’s water distribution system. This program has helped to reduce the per- capita per-day consumption rate for the City by reducing the volume of water that is wasted before it is delivered to the consumer. The City has implemented irrigation restrictions aimed at reducing the quantities of water used by domestic customers for lawn and garden watering. The per capita rate of water consumption is a measure of the effectiveness of a water conservation program; the lower the figure, the better. The City’s per capita rate has increased in recent years, but its adjusted gross per capita rate has decreased. The adjusted gross per capita rate takes into account “significant users,” which are defined as non-residential customers other than golf courses that use more than 25,000 gallons per day or that represent more than five percent of the utility’s annual water use.18 The City’s per capita rate in 2005 was 145.69 gallons per day, and its adjusted gross per capita rate in that year was 132.01 gallons per day. The adjusted gross per capita rate may not exceed 150 gallons per day within the SWUCA. Thus, the City will be required to continue its conservation programs (and implement additional programs, if necessary) to ensure that its adjusted gross per capita rate does not exceed 150 gallons per day over the life of the permit. A portion of the City’s treated wastewater is reused for cooling at the City’s McIntosh Power Plant pursuant to a permit from DEP under Chapter 403, Florida Statutes. The DEP permit, No. FL0039772 (Major), states in pertinent part: Industrial Reuse: Effluent is reused . . . as a non-contact cooling water at the City of Lakeland McIntosh Power Generating Plant. The volume of water used on a daily basis fluctuates on an as needed basis. There are no restrictions on the volume that can be routed to the reuse system. The power plant evaporates water in the cooling process or returns cooling water into the Glendale WWTP for final treatment in the manmade wetlands treatment system. The reuse in the power plant is not required as effluent disposal. . . . . The remainder of the City’s treated wastewater is “blended” with the water used at the power plant in order to meet the conductivity standards in the DEP permit and the conditions of certification for the power plant and/or directly discharged into an artificial wetland system that ultimately discharges to the Alafia River. Section 3.1 of the BOR (at page B3-2) provides that “Water Use Permittees within the SWUCA who generate treated domestic wastewater are encouraged to demonstrate that . . . 50% of the total annual effluent flows is beneficially reused.” (Emphasis supplied). The BOR lists a number of uses of treated wastewater that are considered to be beneficial reuse. The list includes “industrial uses for cooling water, process water and wash waters” and “environmental enhancement, including discharges to surface water to replace withdrawals.” The City’s use of treated wastewater for cooling at the McIntosh Power Plant is a beneficial reuse under the BOR. The treated wastewater directly discharged by the City into the artificial wetland system is not a beneficial reuse under the BOR because it is not replacing surface water withdrawals. The BOR requires all users within the SWUCA to investigate the feasibility of reuse, and requires the implementation of reuse “where economically, environmentally and technically feasible.” The City has not recently undertaken a study or otherwise evaluated the feasibility of increasing its reuse. The draft permit attached to the District's PRO includes a specific condition requiring the City to "provide a comprehensive study of reuse opportunities encompassing the [City's] water, wastewater, and electrical utilities systems" by January 1, 2009.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue WUP No. 2004912.006 with the terms and conditions contained in the draft permit attached to the District’s PRO, except that: The 2014 population referenced in the permit shall be 191,208; The adjusted gross per capita rate shall not exceed 150 gallons per day; Special Condition No. 2 shall be amended to authorize withdrawals from the NEWF at 4.0 mgd annual average and 4.8 mgd peak month, and the quantities listed in the Withdrawal Point Table for the NEWF wells shall be adjusted accordingly; Special Condition No. 4 shall be replaced with a reference to the EMMP and the conceptual WIP attached to the City’s PRO, and the list of monitoring stations in the EMMP shall be amended to include Lake Bonny and Lake Bonnet; and An additional specific condition shall be added encouraging the City to pursue a WUP for the Combee site for future water needs and/or for additional mitigation of the impacts of pumping at the NEWF. DONE AND ENTERED this 4th day of January, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2008.
The Issue The issue for consideration herein is whether Sarasota County Utilities should be issued a consumptive use permit to draw water from the 14 wells in issue here located in Sarasota County.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for themanagement of water resources within its area of geographical jurisdiction. Included therein was the responsibility for the permitting of consumptive water use. The Respondent, Sarasota County, is a political subdivision of the State of Florida and operates a public utilities division which is charged with meeting, among other things, the potable water needs of the residents of the County. Petitioners Wyatt S. Bishop and Joan Jones are both residents of Sarasota County and both draw their potable water from wells which utilize the aquifers pertinent to the wells for which the permit in issue here relate. Mr. Bishop lives approximately 7.5 miles north of the Carlton Reserve, the property on which the wells in issue are located, and Ms. Jones lives approximately 7 miles from the Reserve, but in a different direction. Sarasota County filed an application for a consumptive use permit with the District on January 28, 1987 requesting an average daily withdrawal of 10.71 million gallons per day, (mgd), and a peak monthly withdrawal of 15.55 mgd. This application, assigned number 208836.00, was, over the next three years, amended by the County four separate times. These amendments reflected revised water demand determinations and were submitted to provide additional information requested by the District. The District issued a preliminary staff report and proposed intent on March 26, 1991 reflecting an approved withdrawal in the amount of 7.28 mgd average daily withdrawal and 11.1 mgd peak monthly withdrawal. These figures were revised, however, byan amendment by the District on July 8, 1991, and as amended, authorize 7.303 mgd average daily withdrawal and 9.625 mgd peak monthly withdrawal. The County's application was reviewed by an experienced hydrologist in the District office with extensive permit review experience who utilized, in his evaluation of the permit, the pertinent District rules and policies. By way of background, to more easily understand the circumstances here, Sarasota entered into a contract with Manatee County in 1973 which called for the latter to provide up to 10 mgd of water for a period of 40 years, up to and including the year 2013. However, in 1979, Manatee County's utilities director advised Sarasota County that it, Sarasota County, could not continue to rely on Manatee County's water after the expiration of the current contract, and would, therefore, have to become self sufficient in water. Since the MacArthur tract, now known as the Carlton Reserve, had just recently been identified by, inter alia, the United States Geological Service as a potential long term water source for Sarasota County, after Manatee County advised Sarasota County of its future expectations, Sarasota County and the Manasota Basin Board hired a consulting firm to conduct hydrological testing on the Carlton Reserve. This study concluded that the Reserve had sufficient water resources to satisfy the needs of the unincorporated areas of Sarasota County for an extended time into the future. In 1985, because of its increased water needs and thetime necessary to complete required studies on the utilization of the Myakka River, a surface water resource, Sarasota County concluded that it was suffering a water supply shortage and entered into a supplemental contract with Manatee County to provide 2 million gallons of water per day over a 5 year period which would expire in 1990. Sarasota County had not, however, been idle with regard to the investigation of other water resources. Studies done included not only the Myakka River mentioned above but a reservoir owned by the City of Bradenton, and the Peace River. Nonetheless, it was determined that the Carlton Reserve was the best source available overall, and in 1987, the County filed the application in issue here. The permit was under consideration for approximately 3 1/2 years before the initial decision by the District to grant it. During that time the County experienced a significant deficiency in its water sources and found it necessary, on February 5, 1991, to enter into another contract with Manatee County to supply an addition 5 mgd. Terms of that contract clearly indicate the expectations of both parties that Sarasota County will take reasonable steps to develop its own water resources. It is not as though Sarasota County sat quietly in the interim, however, and allowed the situation to develop. A building moratorium to halt additional construction was proposed and as a result, economic forces in the County indicated a potential loss of jobs to County residents. None of this would be desirable from an economicstandpoint. In the course of the permit application process, 12 test wells were sunk to conduct aquifer pump tests; to assess water quality, amounts and availability, aquifer characteristics and drawdown; and to determine the impact of withdrawal on water quality. Eight of these 12 wells are located on the Carlton Reserve. The other 4 are located on property owned by the MacArthur Foundation which is contiguous to the Carlton Reserve property and from which Sarasota has a right by easement to draw water. The 2 wells yet to be constructed will be on Sarasota County property. Sarasota County currently receives 10 mgd of water under its contract with Manatee County; an additional 5 mgd under the February 5, 1991 contract; 2 mgd from the University wellfield, (with a peak withdrawal rate of 3 mgd); and .9 mgd from the Sorrento wellfield, (with a peak withdrawal rate of 1.1 mgd). This latter source is only producing currently .6 mgd of potable water due to constraints imposed by the water treatment requirements. Taken together, the current Sarasota County supply constitutes 18.6 mgd. The above does not take into account the County's agreement with the City of Sarasota calling for the purchase of up to 2 mgd. Since this source is not reliable, it is not included in the total, and the City is not considered an available water source. In addition, the District and Sarasota County stipulated on July 15, 1991 that within 30 days, the County would apply tophase out routine water production from the Sorrento wellfield, relying on it only in emergency situations with District consent. For this reason, it, too, is not considered an available water supply source. These currently existing sources, with modifications as described, will be the primary sources of potable water provided to 6 major service areas in Sarasota County when the County's water treatment plant and transmission system are complete in 1993. In attempting to define the County's future water requirements, two major criteria were considered. The first was the County's historical water demand, and the second, modifying it, relates to the demand arising as a result of new water users being added to the system as a result of the County's capital improvements and acquisition program. Water resources are not unlimited. Current resources come primarily from Manatee County and there are constraints on this supply as it is made available to Sarasota County. For example, the 10 mgd contract expires in 2013. The 5 mgd contract expires in 2001. Though the latter is subject to renewal, renewal is contingent upon the availability of water supply at that time, and that is not a sure thing. It can, therefore, readily be seen that 15 out of the 18.6 mgd routinely available now comes from Manatee County, and those sources are not perpetual. In addition, it is conceivable that Manatee County may pre-blend the water it delivers to Sarasota County with water of lesser quality, so that the delivered water may exceed the total dissolved solids standard of 500 ppm for potable water. If thewater from Manatee County were reduced to that quality, the University wellfield supply, which currently exceeds standards itself, and which relies on blending with better quality Manatee County water to be potable, would also be removed as a source of potable water to Sarasota County. In order to comply with the provisions of Section 373.171, Florida Statutes, which requires the District to regulate the use of water by apportionment, limitation, or rotating uses, to obtain the most beneficial use of water resources and to protect the public health, safety and welfare, the District analyzed the available water sources and determined that Sarasota County relies upon its 10 mgd supply from Manatee County and the 2 mgd supply from University wellfield to constitute 12 mgd usable water. The 5 mgd from Manatee County would be used only in an emergency situation, and the Sorrento wellfield would be abandoned. Future water demands must be predicted relying in great part upon an historic record of prior water use. Utilizing a statistical procedure called linear regression, a methodology accepted by the District, indicated a water demand figure for the period from 1992 to 1997 based upon six use points extending from 1985 to 1990. These use records reflected a low of 9.733 mgd and a high of 12.808 mgd, the former being in 1985 and the latter in 1990. In addition, the County estimated that its capital improvement program would add between 10 and 12 thousand customers who presently use private wells, whose water use would constitute approximately 2 mgd of additional demand. The County's program toacquire some 42 private franchises now serving customers would add an additional demand of 2 mgd. Taken together, these programs would add in approximately 1.8 mgd per year to the need assessment, and it would therefore appear that by 1997, the County's average daily demand, considering all new users, would be 17.84 mgd. The water to be drawn from the Carlton Reserve is not currently potable and will require some form of treatment to render it so. Sarasota County proposes to use the Electrodialysis Reversal process, (EDR), because, in the County's judgement, it is more efficient than others such as reverse osmosis and ion exchange. Whereas EDR is rated at up to 85% efficient, the others range between 50% to 75% efficient. In that regard, in order to determine the maximum amount of water to be drawn, providing a safety factor for a treatment plant operation that is not working up to peak capacity in computing the water needs, the EDR process was determined to be no more than 80% efficient. Factoring in that efficiency potential, when the 1997 average daily demand is subtracted from the County's projected water capacity, the withdrawal need in 1997 is determined to be 7.303 mgd. However, as a part of its permitting process, the County also calculated its peak month daily demand. This is a figure which represents the maximum amount permitted to be drawn on a daily basis during the peak demand period. This peak period was determined under Section b 3.2 of the District's Basis of Review by taking the 1989 daily flow and using a sliding 31 day calendar to determine the highest historical 31 day flow. Thisresulted in a peak month coefficient of 6.16 which was then multiplied by the 1997 average daily demand of 17.842 mgd which resulted in a peak month daily demand of 20.7 mgd. When existing water supplies are removed and the 80% EDR treatment process factor is applied, the amount of raw water needed from the wellfield in issue on a peak monthly basis would be 9.625 mgd. This peak monthly basis figure is considered because of the intermittent periods of low rainfall and high water demand within the County. Accepting the 1.8 gpd yearly increase; the peak factor of 1.16; and the assumed water supply capacity of 18.6 mgd; Sarasota County's need will exceed its available supplies by 1993. In fact, the County is already experiencing low water pressure in part of its service area during peak demand periods. County experts estimate that without the requested water from the Carlton Tract, Sarasota County can expect to experience dry periods as early as 1993 during the periods of peak water usage, generally between April and June. For the above reason, when the application and its supporting information was reviewed by Mr. Basso, the District hydrologist with extensive experience reviewing more than 300 water use application, he determined that the water supplies requested are necessary to meet the County's certain reasonable demand, and that this meets the criteria set out in Rule 40D - 2.301(1)(a), F.A.C. Turning to the issue of hydrologic and environmental impacts, the District's Basis For Review of Water Permit Applications provides for the use of a "water use model" inevaluating water needs and the appropriateness of a proposed withdrawal. In preparing its submittal to the District, Sarasota County performed certain tests and modeling to derive the statistical and scientific information used in support of its application. Specifically it used the USGS' MODFLOW model utilizing information obtained from the pump tests run on the wells in the pertinent areas. Consistent with the District's rule, the water data and aquifer drawdown were determined by simulated pumping. The tests run also provided the information on water quality in the aquifer and physical characteristics including transmissivity, storage coefficient, specific yield and leakance between aquifers. This data also helped in defining the hydrogeologic framework of the Carlton Reserve. The Carlton Reserve's hydrogeology listed in descending order from the surface, includes a surficial aquifer which varies in depth between 19 and 70 feet across the Reserve; a semi-confining clay unit separating it from the intermediate aquifer; the upper intermediate and lower intermediate aquifer which range in depth from 140 to 180 feet across the Reserve; another confining layer, and the Upper and Lower Floridan aquifers. The hydrology and groundwater modeling expert who constructed the model used in Sarasota County's permit application concluded that the water table drawdown at the Reserve property boundary in the surficial aquifer would be less than .3 of a foot; less than .4 of a foot in the intermediate aquifer; and 2.9 feet in the Upper Florida aquifer. The water to be drawn consistentwith this instant permit, if approved, would come from the Upper Floridan aquifer on the Reserve. The County's experts were conservative in the assumptions used in the groundwater model. It was assumed there would be no lateral water flow into the model area and no recharge. In addition, the model called for all pumps to run simultaneously at a maximum drawdown of 12.65 mgd for 90 days rather than at the requested quantity of 9.625 mgd. Utilization of these assumptions provided a scenario wherein "severe" impacts would be encountered. Based on the testing and the modeling done, expert opinion was that there would be no quantity or quality changes that would adversely effect water resources including ground and surface water. This meets the criteria of Rule 40D-2.301. This opinion was concurred in the District's hydrology expert. Nonetheless, in its proposed approval, the District has imposed special permitting conditions which require the County to monitor, analyze, and report water quality and water table level information to the District on a monthly and annual basis. When it evaluates the information supplied by an applicant relating to ground water monitoring, the District is required to consider certain presumptions set forth in its Basis For Review. For example, the District presumes that if there is a drawdown of more than 1 foot in the surficial aquifer at a wetland, adverse environmental impacts will occur. In the instant case, the County model concluded that the actual drawdown in the surficial aquifer at the Carlton Reserve is less than .6 of onefoot and, therefore, there should be no adverse environmental impact resulting from the withdrawal. Nonetheless, the County has developed several plans designed to provide information on environmental impacts which will continuously monitor such parameters as rainfall and evaporation, wetlands hydroperiod changes and vegetative changes in the wetlands to detect any changes which might be attributed to the water pumping. These plans have been made special conditions to the water use permit, and in the opinion of the County's ecology and hydrology expert, would enable the County to adequately monitor and detect any pertinent changes to the pertinent factors concerned on the Carlton Reserve. If wetland changes are detected, a contingency plan will be in effect which will require an alteration of pumping schedules or other action to minimize any adverse impacts. The District expert in wetlands and wildlife habitat has opined that these measures, with which he is familiar, are adequate to insure that adverse impacts to the wetlands will not occur. This is consistent with the provisions of Rule 40D-2.301(1). As was stated previously, the water to be drawn pursuant to this permit will be drawn from the Upper Floridan aquifer. This water is not potable but is treatable and is the lowest quality water which can be economically used by the County. Water of a lower quality does exist in the Lower Florida aquifer, but it is not economically treatable, and, in addition, use of this Lower Floridan aquifer might cause vertical movement of the poorer quality water into the upper strata. For all practical purposes,then, the lowest quality water available to it will be used by the County and this is consistent with the District's basis for review. Expert testimony indicates that saline water will not be infused into the Upper Floridan aquifer. Salt water intrusion generally occurs when groundwater is brought to a level below sea level. Even at the point of maximum actual drawdown as a result of pumping on the Reserve, the fresh water level will remain at least 20 feet above sea level, and as a result of the difference in water level, no saline water intrusion into the fresh water supply will occur even though salt water intrusion can also occur as a result of upward vertical movement of lower quality water due to withdrawal. The District's hydrologist and reviewing official also concluded that because of the confining layer below the aquifer from which water will be withdrawn, there would not be any significant upward movement of lesser quality water. The District's basis of review also envisions an aquifer pollution if a proposed withdrawal would spread an identified contamination plume. Here no contamination has been identified in the area from which the water will be drawn, and therefore, contamination would not be spread. The Basis for Review also infers there will be adverse impact to off site land if there is a significant drawdown of surface water bodies or if damage to crops or other vegetation can be expected. Here, the water table drawdown at the boundary of the Carlton Reserve is anticipated at less than .3 of one foot and any drawdown further out from the Reserve can be expected tobe even less. As a result, no adverse impact to existing off site land useage is expected. With regard to Rule 40D-2.301(1)(i), relating to an adverse impact on existing legal uses, the District presumes that no adverse impact will exist if the drawdown in the water table is no more than 2 feet at an affected well, or the potentiometric surface at the well is not lowered by more than 5 feet. Here, again applying the County's groundwater modeling demonstrates that the drawdown at its worst, in the Upper Floridan aquifer, would be no more than 2.9 feet at the Reserve boundary and much less at the Petitioners' wells. Both Mr Bishop's and Ms. Jones' wells are approximately 7.5 and 7 miles, respectively, from the closest well on the Reserve property. Ms. Jones' well is drilled into the intermediate aquifer which is above that which the County proposes to use and should not be impacted. Mr. Bishop draws water from the intermediate and surficial aquifers, both of which are above the Upper Florida aquifer identified for use here, and the groundwater modeling would suggest that his well would not be impacted either. Sarasota County's application contains reference to numerous proposals for water conservation measures which it intends to implement or has already implemented. It has adopted ordinances to enforce the District's watering restrictions and is currently implementing a block inverted use rate structure to promote conservation. It has developed programs for use in the schools outlining water conservation efforts and is developing programs topromote the increased use of treated waste water for golf course irrigation. The requirement for a water conservation plan such as is described and envisioned by the County is a condition of the water use permit proposed, and in addition, the County has adopted an Ordinance, (90-38) which modifies its building code to require installation of water conservation devices in new buildings erected in the County. It has developed proposals for conservation measures such as water auditing, meter testing, leak detection, system looping, and pressure reduction, and has selected the EDR process of water purification as the most efficient use of groundwater resources. Petitioner, Bishop, testified to his belief that approval of this permit and the resultant water withdrawal on the Carlton Reserve would necessitate an expansion of the boundaries of the District's Eastern Tampa Bay Water Use Caution Area to a point where his property would be encompassed therein. In support of his position, Mr. Bishop offered a notice to the effect that new ground water withdrawals would not be permitted within a certain "most impacted area" within the caution area. There was, however, no independent evidence from hydrologists, geologists, or other conservationists, or individuals familiar with the water conservation process, to support Mr. Bishop's contention that either the boundaries would be expanded or that withdrawal of the proposed permitted amounts of water from the Carlton Reserve would cause the boundaries to be expanded. By the same token, Mr. Bishop's contention that theproposed withdrawal from the wells here in issue would adversely effect his ability to draw water from his existing well was not supported by any expert testimony or documentary evidence tending to support or confirm his contention. He had no evidence tending to contradict the County's and District's experts, all of whom indicated there would be no adverse impact on the environment or water resources as a result of the instant permit. Similarly, neither Petitioner offered any evidence of a demonstrative nature that would draw any connection between the proposed permitted withdrawals and potential salt water intrusion and water level drawdown in their wells. The County introduced construction permits issued by its own health department covering 8 of the 12 wells which have been drilled on the Carlton Reserve as test wells. These wells were clearly sunk pursuant to an agreement between the District and the County's public health unit which delegates authority for water well construction permitting to the County. Taken together the documentation indicates that these 12 wells on the Reserve were installed and permitted pursuant to and consistent with appropriate permitting processes, and the testimony of Mr. Bassarab, the County's expert who oversaw the installation of the wells, reflects they are appropriately grouted and sealed. Therefore, there will be no mixing of lower quality water from the lower portion of the Floridan aquifer with the better quality water from the upper portion of that aquifer. The County's evidence clearly refutes the allegation by Mr. Bishop that the 12 test wells currently existingon the Carlton Reserve were neither permitted nor inspected as required by the District. County Commissioner Hill, who testified on behalf of the Petitioners, indicated that the wells applied for here are unnecessary and an inappropriate expenditure of County funds. She claimed there are other valid sources of water available to the County, including that extracted from excavated shell pits and seawater from the Gulf of Mexico which could be treated and desalinated. The Commissioner's comments as to alternate sources are not specifically rebutted. However, she is neither an expert in hydrology or hydrogeology, and her testimony is not persuasive. While other water sources may exist, the better evidence clearly indicates that those sources are not sufficient to meet the County's needs or are otherwise inappropriate for use by the County in sufficient quantity to satisfy those needs.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that consumptive water use permit No. 208836.00, providing for authorized quantities as outlined in the intent to issue, subject to conditions contained therein, be issued to Sarasota County. RECOMMENDED in Tallahassee, Florida this 5th day of September, 1991. 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 5th day of September, 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 PETITIONERS: Rejected as not supported by the evidence. Accepted. Accepted. - 8. Resolved against the Petitioners on the basis information presented by Respondents. 9.- 13. Accepted and incorporated herein. 14. - 16. Accepted and incorporated herein. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. - 23. Accepted. Accepted but not dispositive of any issue. Accepted. & 27. Noted as citation of authority. Rejected. & 30. Accepted as restatements of evidence but not as Findings of Fact. 31. Irrelevant. 32. Rejected 33. & 34. Not a error is, in fact, it is such. 35. - 38. Irrelevant. 39. - 43. Accepted. 44. Accepted. 45. Rejected. 46. Accepted and incorporated herein. 47. & 48. Rejected as a mere citation of testimony. 49. Not understandable. Not a Finding of Fact. 50. Accepted. 51. Evidence is acceptable. 52. Not sufficiently specific to rule upon. 53. Not proven. 54. Not specific. 55. & 56. Rejected. FOR THE RESPONDENTS: 1. - 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. 18. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. - 32. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 37. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 43. Accepted and incorporated herein. Accepted. Accepted and incorporated herein, - 48. Accepted and incorporated herein. Accepted - not a Finding of Fact. Accepted and incorporated in substance herein. Not correct as stated. Sarasota County will not be withdrawing saline water from the upper Floridan aquifer. The remaining discussion is accepted. Accepted and utilized. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. Accepted. 61 - 63. Not Findings of Fact but comments on the evidence. Accepted and incorporated herein. & 66. Not Findings of Fact. COPIES FURNISHED: Wyatt S. Bishop, Jr. 5153 Tucumcari Trail Sarasota, Florida 34241 Joan Jones 719 East Baffin Road Venice, Florida 34293 William A. Dooley, Esquire Nelson, Hesse, Cyril, Smith, Widman, Herb, Causey & Dooley 2070 Ringling Blvd. Sarasota, Florida 34237 Cathy Sellers, Esquire Steel, Hector & Davis 215 S. Monroe Street Tallahassee, Florida 32301-1804 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, Esquire Vivian Arenas, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue for consideration herein is whether the withdrawal by Amerifirst of its application for a permit from the Department to build a recreation area and boat ramp on the Braden River precludes a hearing to determine whether the project can be constructed under a general permit held by Amerifirst.
Findings Of Fact On July 13, 1989, the Department received an application from the Respondent, Amerifirst, for a permit to construct a recreational area and boat ramp for its 465 acre, 966 unit Mote Ranch development in Manatee County. Thereafter the Department published an Intent to Issue the permit in question in which it advised persons whose substantial interests were affected thereby of their right to protest and request a formal hearing. By Petition filed June 1, 1990, the City filed a timely Petition For Formal Hearing protesting the Intent to Issue, claiming that the project would degrade the quality of the City's only public drinking water supply. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on June 22, 1990, the undersigned set the matter for hearing in Bradenton on August 28, 1990. However, in July, 1990, Amerifirst communicated to the Department its intention to use the general permit under Section 17-312.803, F.A.C., for the installation of the boat ramp, and by letter of August 13, 1990, the Department indicated that proposed action appeared to be authorized. Thereafter, on August 14, 1990, Amerifirst requested withdrawal of the previously filed special permit which had been protested by Petitioner herein. The parties agree that Amerifirst's withdrawal of its application for special permit renders moot the issue of that permit's propriety.
Recommendation It is, therefore: RECOMMENDED that the Department's Notion To Dismiss be granted and that an Order be issued dismissing the City of Bradenton's Petition For Formal Proceeding in this case. RECOMMENDED in Tallahassee, Florida this 19th day of October, 1990. 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 19th day of October, 1990. COPIES FURNISHED: Mark A. Nelson, Esquire Harllee, Porges, Hamblin & Hamrick, P.A. P.O. Box 9320 Bradenton, Florida 34206 Steven J. Chase, Esquire Abel, Band, Brown, Russell & Collier, Chartered P.O. Box 49948 Sarasota, Florida 34230-6948 Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 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 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2012.
The Issue The issue 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.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Respondent has owned and operated a water vending machine (Respondent's Machine) located at the Sunshine Key Resort on U.S. Highway 1 in Sunshine Key, Florida. On September 8, 1996, following the Department's receipt of a laboratory report, indicating that a previous sample of vended water taken from Respondent's Machine was "contaminated with coliform," Jose Padron, a Sanitation and Safety Specialist with the Department, and Armando Escoto, a Sanitation and Safety Supervisor (for Dade and Monroe Counties) with the Department, visited the location of Respondent's Machine to collect another sample for testing. During their visit, Padron and Escoto observed the following, as their written inspection report reflects: "area around machine filthy"; "self-closing door not working"; "water dispensing area filthy"; "water spout dirty with rust & mold"; "no permit posted"; and "no required consumer information posted." Based upon these observations, they prepared a "stop use" order directing Respondent "to withhold [the machine] from . . use subject to further instructions from an authorized agent of the Department of Agriculture and Consumer Services." The order contained the following "Notice to Responsible Management Official": NOTICE TO RESPONSIBLE MANAGEMENT OFFICIAL This STOP SALE, USE OR HOLD ORDER is EFFECTIVE IMMEDIATELY and is immediately appealable or enjoinable. An appeal may be instituted by filing a petition with the appropriate district court of appeal, S.120.59(3), S.120.68, Florida Statutes. The petition must be filed with the Division of Food Safety, 3125 Conner Boulevard, Room 279, Tallahassee, Florida 32399-1650 and a copy with the appropriate court of appeal, within 30 DAYS from the date this ORDER is filed with the Division of Food Safety at the above address. The appeal must be conducted in accordance with the Florida Rules of Appellate Procedure. An action for injunctive relief may be filed in the appropriate circuit court. WARNING: Removal of items ordered withheld from sale or use or the removal of the order and/or tags attached to such items is a violation and punishable under the law applicable. Padron and Escoto "red-tagged" Respondent's Machine (thereby rendering it inoperable) and posted on it the "stop use" order. The following day, September 9, 1996, Donald Epstein, Respondent's president, removed the "red tags" and "stop use" order from the machine. Padron returned to the location of Respondent's Machine on September 30, 1996. He noted that the "red tags" and "stop use" order that had been placed on the machine on September 8, 1996, had been removed and that the machine was "plugged in and back in business" in violation of the "stop use" order. He also observed that the machine's "water spout [was] dirty and rust[y]," the "machine [was] not cleaned and sanitized," and the "machine ha[d] no permit(s) posted." Based upon these observations, Padron prepared a second "stop use" order. He then "red-tagged" the machine again and posted on it the second "stop use" order. He also issued a Notice of Violation alleging that Respondent had violated Section 500.172, Florida Statutes, by virtue of its having "broken" the September 8, 1996, "stop use" order. Padron conducted a follow-up inspection of Respondent's Machine on October 28, 1996. He found that the machine had been "cleaned and sanitized." Accordingly, on November 11, 1996, he issued a Release Notice advising Respondent that the previously issued "stop use" orders had been vacated and that Respondent was free to put its machine back in service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding Respondent guilty of the violation of the Act alleged in the Administrative Complaint and fining Respondent $2,000.00 for having committed said violation. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.
