The Issue Are Petitioner’s outside water supply connections in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, and, if so, should Petitioner be assessed an administrative fine for such violation?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is permitted by the Department in accordance with Chapter 513, Florida Statutes, to operate the Peace River Campground, (Campground) which is a Recreational Vehicle (RV) Park (182 spaces) and a Mobile Home (MH) Park (15 spaces), annual permit number 14-010-97. The Campground’s water is supplied by a community public water utility company. Each RV and MH space has an outside water tap as required by Chapter 10D-26, Florida Administrative Code. Many of the outside water taps do not have a backflow or back-siphonage prevention device installed on them. On February 6, 1997, the Department conducted a routine inspection of the campground and determined that the campground was in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the required backflow or back-siphonage prevention. The citation required Petitioner to install backflow or back-siphonage prevention by February 28, 1997, the next scheduled inspection date. On February 28, 1997, the Department conducted a follow-up inspection of the Campground’s water system and determined that the alleged violation had not been corrected. Petitioner disagreed with the Department’s determination that the Campground’s water system was not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water system designed or constructed to prevent backflow or back-siphonage. On February 28, 1997, the Department issued a citation of violation (citation) to Petitioner alleging a violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water supply connection designed or constructed to prevent backflow or back-siphonage. The Campground’s water connections at each RV and MH site have water taps which are above ground and have standard water shut-off valves. The Campground’s water system has good water pressure of approximate 70-100 pounds pressure per square inch (psi). The Campground’s outside water taps are neither constructed nor designed to prevent backflow or back-siphonage in the event the water pressure drops to a point which would allow backflow or back-siphonage, such as if the water main feeding the Campground’s water system broke. If the water pressure in the Campground’s water system should drop allowing backflow or back-siphonage, hazardous material could possible be injected in the water system. Although there has never been a recorded incident of backflow or back-siphonage into the Campground’s water system, without the some type of backflow or back-siphonage preventer being installed there remains a potential for this to happen. The Campground’s outside water connections would not prevent backflow or back-siphonage under certain conditions and are not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code. There are six basic types of devices that are recognized by the Environmental Protection Agency and the engineering profession which prevent backflow and back-siphonage. These devices are: (a) air gaps; (b) barometric loops; (c) vacuum breakers--both atmospheric and pressure type; (d) double check with intermediate atmospheric vent; (e) double check valve assembler; and (f) reduced pressure principle devices. The Department does not mandate which device the Petitioner must install, only that a proper device be installed which will prevent backflow or back-siphonage. A hose bib vacuum breaker such as Department’s Exhibit 3 provide the minimum protection against backflow or back-siphonage and is considered acceptable for compliance with Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order assessing an administrative fine in the amount of $150.00. DONE AND ENTERED this 27th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1997. COPIES FURNISHED: Susan Martin Scott, Esquire Department of Health Post Office Box 60085 Fort Myers, Florida 33906 George Lempenau, pro se Peace River Campground 2998 Northwest Highway 70 Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 October, 2016.
Findings Of Fact Respondent/Applicant, North Orlando Water and Sewer Company, filed an application on August 11, 1981, with Respondent, Department of Environmental Regulation, seeking a permit to authorize the construction of sewage effluent disposal ponds in Winter Springs, Seminole County, Florida. On August 16, 1981, the Department advised the Applicant that additional information was required. This information was supplied by Applicant on September 11, 1981. After reviewing the application and supplemental information, the Department determined that Applicant had provided reasonable assurance that the proposed percolation ponds would not adversely affect waters of the State and thereafter issued Permit No. DC59-46435 on September 22, 1981, authorizing the construction of the requested activity. Petitioners are owners of the property on which one of the disposal ponds is to be constructed. On June 12, 1981, Applicant instituted condemnation proceedings in Circuit Court for Seminole County under Chapters 73, 74 and 361, Florida Statutes, seeking to condemn the property so that the facilities could be constructed. The suit remains pending until all necessary permits from the Department are acquired by Applicant. The parties agree that based on plans, test results and other information, the construction of the proposed installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. The permit was issued without formal public notice. However, it falls under the class of permits enumerated in Rule 17-1.62(3)(a), Florida Administrative Code. That rule makes publication of a notice discretionary on the part of the Department, and no abuse of discretion was shown. Item D(i) on page 7 of the application requires that the Applicant "[i]ndicate the number of potable water supply wells within 500 feet of effluent disposal area, the depths of these wells and their approximate distances from the disposal area." Applicant answered "None". There are no public potable water supply wells within 500 feet of the effluent disposal area. There are several private potable water supply wells within 500 feet of the pond but adequate buffer zones between these private potable water supply wells and the actual effluent disposal area exist. Moreover, Petitioners' expert witness conceded that seepage would be minimal, should not be a concern, and the failure to list the private wells on the application had no effect on the substantive merits of the application. Applicant construed the term "potable water supply wells" to mean only public wells since DER has no jurisdiction over private wells. For this reason, it answered the question in the manner that it did. The Department concurs in this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Permit No. DC59-46435 be issued to Applicant, North Orlando Water and Sewer Company. DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1982.
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue The disputed issues are as follows: Whether the proposed Water Conservation Plan is sufficient to meet the requirements of the District rule; Whether the proposed pumping will adversely affect wetlands and wetland vegetation in contravention of District rule; Whether the permit applicant has provided reasonable assurance of entitlement to the requested permit as required by the District rule; and What limiting conditions pursuant to Rule 40C-2.381, F.A.C., should be imposed on the Consumptive Use Permit (CUP).
Findings Of Fact THE PARTIES The Commission was created by the legislature pursuant to Public Law 67-1754 in combination with Public Law 85-503. Its principal office is located in New Smyrna Beach, Volusia County, Florida. The Commission is charged with maintaining a water supply and providing wastewater treatment and electrical power. The District is an agency created pursuant to Chapter 373, Florida Statutes, in charge of regulating, among other things, consumptive uses of water in a 19 county area of the State of Florida, including all of Volusia County. The geographical boundaries of the District are described in Section 373.069(2)(c), Florida Statutes. Vernon and Irene Beckham are property owners of the property proposed for the construction of the new State Road 44 wellfield. Volusia City-County Water Supply Authority is a cooperative created by interlocal agreement in accordance with Section 163.01, Florida Statutes (1991), which party made no appearance at the Formal Administrative hearing but adopted the position of the Commission. Nassau is an individual residing at 4680 Cedar Road, New Smyrna Beach, Florida. THE APPLICATION The present service area of the Commission encompasses approximately 43 square miles, of which only about 15 square miles of the service area are located in the City of New Smyrna Beach. On August 8, 1984, the District issued Consumptive Use Permit No. 2- 127-0214NG to the Commission for its Glencoe and Samsula wellfields, which permit would expire in seven years. The combined authorized withdrawal of the existing wellfields is 5.2 mgd on an average day and 8.31 mgd on a maximum day. In December 1990, the Commission submitted its Consumptive Use Permit Application to renew the existing permit, including the development of an additional water supply wellfield. This application also sought an increased allocation to meet projected demand for the Commission's service area. The total allocation sought was 5.59 mgd on an average day and 8.31 mgd on a maximum day. However, the District has recommended 5.29 mgd on an average day and 7.62 mgd on a maximum day by 1998. The source of the water for all three wellfields is the Floridan aquifer. The Floridan aquifer can produce the volumes of water requested based on the past pumpage from the Samsula wellfield and the Glencoe wellfield. The Glencoe wellfield has been in operation since early 1950. The Samsula wellfield has been in operation since 1982. The Commission has never exceeded the currently permitted withdrawals as measured by annual, daily, or peak basis. WATER DEMAND Approximately 75% of the demand is related to residential consumption. Approximately 10% of the demand is related to commercial and industrial consumption. Approximately 7% of the demand is related to irrigation. Lastly, approximately 8% of the demand is for miscellaneous consumption, including loss that occurs in the treatment process itself. Gross water use in the area served by the Commission is about 138 gallons per person per day. The approximate 103 gallons per person per day (net) used by residences is small as compared to other providers of potable water. The present population of the Commission's service area is approximately 31,570 customers. The projected 1997 population of the Commission's service area is 40,680. The Commission's population projections were obtained by methods consistent with the District's Permit Manual. VI. PERMIT CRITERIA Water Conservation Plan The Commission has submitted a complete Water Conservation Plan. The implementation of that plan is a condition of the permit. The Water Conservation Plan includes a customer audit program of the system to determine how much water is pumped and where the water goes once it is distributed. The customer audit program involves employees of the Commission discussing the historical water usage with the customer, detection of leaks, installation of water restrictors, and the prevention of freezing pipes in the wintertime. The Commission encourages reduced consumption through the water meter charges. Larger meters use more water than smaller meters. The monthly charge for the larger meters is higher thereby encouraging the use of smaller meters. The Water Conservation Plan includes a pressure monitoring program to detect leaks in the system. The program has been implemented. The system pressure monitoring plan measures the pressure in different zones around the Commission's service area and, should a large main burst, an alarm is triggered. Repair of that water main would occur immediately. The Water Conservation Plan includes an analysis of the economic, environmental and technical feasibility of using reclaimed water in Commission's Exhibit No. 14, Reuse of Reclaimed Wastewater Conceptual Planning Document. The Reuse of Reclaimed Wastewater Conceptual Planning Document involves four major phases of construction starting in 1991 with completion in 1995. The first phase is underway. As part of the reuse plan, the Commission is modifying the wastewater treatment plant to accept reuse water. The construction is 99 percent complete. A total cost for that is approximately 1.5 million. The Commission will be replacing some freshwater irrigation sources with reclaimed water. The Commission has valid DER permits for this use of reclaimed water. As part of the reuse plan, the Commission has entered into construction contracts to serve the municipal golf course, the landscape at city hall and city parks with wastewater. The transmission and distribution lines will be completed before October 1992. The cost is approximately $700,000. Other phases of the reuse plan include construction of the major infrastructure inside and outside the city for reuse distribution. Total investment is in excess of five million dollars. Major customers along the route have been identified to increase the demand on the reuse system. The Water Conservation Plan includes an employee awareness program and an educational program as well as a time frame to implement those programs. The Commission has a public relations program to inform the customers about water conservation which includes newspaper publications concerning reading water meters, xeriscaping, and methods to reduce water consumption and the time/temperature machine which has prerecorded messages. The Commission has a program for educating the public and encouraging xeriscaping or the use of drought resistant foliage. Xeriscaping is implemented at the wastewater lift stations. The Commission has used direct mailing to provide water conservation information to customers. The Commission has a program for inspecting and replacing defective meters. If a meter malfunctions, the replacement reduces the system losses and accurately records water usage. The Commission has a program to monitor unmetered uses, which includes reporting from users such as the fire department of their unmetered use. On a monthly basis, the fire department reports its water usage as calculated by its operation schedule. The Commission is using the lowest acceptable quality water source, including reclaimed water, for certain types of needs such as irrigation of golf courses. The Water Conservation Plan addresses the use of treated effluent to minimize withdrawals of groundwater. Issues Related to Reasonable Assurance Hydrogeology The Floridan aquifer occurs at approximately 100 feet below the land surface throughout Volusia County. It's overlain by approximately 100 foot of sandy and clayey material collectively called the Clastic aquifer or the surficial aquifer. The proposed SR 44 wellfield site is underlain by an approximate 900- foot depth of freshwater of the Floridan aquifer. In the high recharge area of the Deland Ridge, water moves rapidly into the surficial aquifer and recharges the Floridan aquifer. A regional groundwater gradient extends from the Deland Ridge towards the east. There is a volume of water in the Floridan aquifer that is constantly moving from the west to the east to replenish water that is being withdrawn. Based on the regional movement of the Floridan aquifer and the nature of the Floridan aquifer, the water that is being replenished by the withdrawal is mainly coming from the Floridan aquifer with some contribution from the surficial. Another way to determine the source of the water is by geochemical analysis. The source of the water for this use is characterized as freshwater category number three meaning that it is Floridan aquifer water that is replenishing the water that is being withdrawn and not surface water that is going directly into the Floridan aquifer system. Aquifer Tests The aquifer performance test at the SR 44 wellfield shows that the aquifer is able to produce the volumes of water requested. The depths of the proposed wells, and APT test well, at the SR 44 wellfield is 250 feet below land surface or 150 feet into the Floridan aquifer. The APT at the SR 44 wellfield site provided for the collection of data to show what happens to the water levels while the aquifer is stressed. The second APT at the SR 44 wellfield site tested the Floridan aquifer at a depth of 750 feet below land surface. The section of the Floridan aquifer tested was 500 feet thick. The second APT and geophysical logs showed that there were not any additional flow zones below the upper Floridan aquifer which would yield additional water. Prior to the pump recovery test at the Samsula wellfield, the wells were pumping at 2.59 million gallons per day for a couple of days prior to shutting them off. For a period of five days, four wells in the vicinity of the Samsula wellfield were monitored by the District for water level recovery. The actual observations and the predicted drawdowns in the model correlated well. Drawdown does occur at homeowners' wells when the Commission's Samsula wellfield is pumping, but it does not interfere with existing legal users based on the District rules. The drawdown will not cause a ten percent reduction in the withdrawal capability of the homeowner's well. Computer Modeling The PLASM model simulates the response of the surficial and Floridan aquifers to pumping. The computer model oversimplifies the nature of the surficial aquifer by characterizing the layer as a solid homogeneous type of a system, basically being all sand. In reality, there are some shell and clay layers or hardpan. The transmissivity or the ability to transmit water through the aquifer for surficial aquifer sand ranges between 1,000 up to about 12,000. The transmissivity in the model is 5,000 gallons per day per foot (gpdpf) for Layer 1 which was reasonable. In Layer 2, the data from the APT produced a value of 50,000 gpdpf and a leakance value, or value that would correspond to water that moves from the surficial aquifer down to the Floridan aquifer, of 0.0012 gpdpf. This 50,000 and 0.0012 values are reasonable numbers for this area of Volusia County. The PLASM model is an accepted model for simulating pumpage. In the PLASM model, the transmissivity was varied in two different directions, but it averaged 50,000 gpdpf in the Floridan aquifer system. In the Floridan aquifer system, water is going to be moving based on the transmissivity of the aquifer and a leakance value from the surficial aquifer. The water primarily flows in a horizontal direction. There is a component of vertical movement. The difference between the horizontal movement and the vertical movement is an order of magnitude. There's an order of magnitude difference between the 50,000 gpdpf and the 0.0012 gpdpf which shows that the majority of the water is coming from a horizontal direction. There is some vertical movement. The vertical movement is not only from above, but because of the Floridan aquifer there is also vertical movement from below. When a well is pumping water, the water is being replenished mostly from the horizontal direction and from the lower direction in the same aquifer system, with some contribution downward based on the leakance value from above. This is demonstrated or shown by a small predicted drawdown in the surficial aquifer and that predicted drawdown is basically two orders of magnitude less than the drawdowns in the Floridan aquifer. Proposed Recommended Withdrawal Rates The proposed recommended withdrawal rate from the SR 44 wellfield is 1.43 mgd for average daily flow. With the proposed recommended withdrawal of 1.43 mgd at the SR 44 wellfield, the maximum drawdown in the surficial aquifer is approximately 0.34 feet. With the proposed recommended withdrawal of 1.43 mgd at the SR 44 wellfield, the maximum drawdown in the Floridan aquifer is approximately ten feet. A withdrawal of 1.93 mgd at the SR 44 wellfield site would result in a maximum drawdown in the surficial aquifer of 0.7 feet and in the Floridan aquifer of thirteen (13) feet. The proposed recommended withdrawal rate from the Samsula wellfield is 1.93 mgd for average daily flow. With the proposed recommended withdrawal of 1.93 mgd at the Samsula wellfield, the maximum drawdown in the surficial aquifer is approximately seven tenths (0.70) of a foot. With the proposed recommended withdrawal of 1.93 mgd at the Samsula wellfield, the maximum drawdown in the Floridan aquifer is approximately seventeen (17) feet. The proposed recommended withdrawal rate from the Glencoe wellfield is 1.93 mgd for average daily flow. Under the existing permit, the Samsula wellfield is withdrawing at the higher rate of approximately 2.59 million gallons per day. The volumes of water requested from both the Samsula wellfield and the SR 44 wellfield have been reduced from what was originally proposed by the Commission. The reduced allocation for the Samsula wellfield will improve groundwater elevations and thereby reduce groundwater impacts. Water Quality The state water quality standard for public drinking water is 250 milligrams per liter (mg/l) chlorides. For water supply systems where the chloride level is below 250 mg/l, the District uses that level to determine whether or not the pumping is going to cause significant saline water intrusion. The proposed use cannot cause the water quality to exceed 250 mg/l in chlorides. The water quality data from the existing Samsula and Glencoe wellfields shows that none of the wells or trends from the indicate that they are either above 250 mg/l or trending in a degradation mode toward 250 mg/l. The water quality in the wells is stable without degradation of the water quality in either of the Glencoe wellfield or the Samsula wellfield. The water quality data collected during the APT at the SR 44 wellfield showed that the chlorides were below 250 mg/l and that during the test, there was no change or a trend of becoming salty. An independent study used geophysical methods to determine the depths below land surface where high concentrations of saline water exist. That depth was at approximately 1200 feet below land surface. Proposed Permit Conditions The Commission accepts the conditions of the permit as proposed in the Commission Ex. 10-B. The proposed conditions require the Commission to limit the withdrawals per wellfield as specified and to monitor each production well with a flow meter, monitor the groundwater levels, monitor the surface water conditions, monitor rainfall, and monitor the wetlands. The proposed permit conditions and the County's ombudsman program adequately address the possible impacts of the proposed wellfield on existing users. The monitoring will be able determine the impact of the wellfield on those users. The Commission accepts the condition to mitigate for interference with existing legal users in compliance with the proposed permit conditions. The Volusia County ombudsman program provides the method of investigating and resolving issues related to interference of the proposed wellfield operation with existing legal users. The Commission will participate in this program. The Commission's purchase of the property is contingent upon obtaining the consumptive use permit. The Commission will own the site as shown on various exhibits. The drainage pattern of Tiger Bay is northerly for most of the basin. A canal located north of the area provides the primary drainage for Tiger Bay. A small drainage area within Tiger Bay of approximately 90 acres drains south into the SR 44 wellfield site. Some of the drainage does come through the two 30-inch culverts under SR 44, and both commingle with the wetlands that are on the site as well as drain into a ditch located along the Ranchette Road. The maximum capacity at ideal conditions for those two culverts would be approximately 300 CFS, cubic feet per second. The entire Tiger Bay drainage basin is approximately 13,000 acres. The volume of surface water which can flow from Tiger Bay is 13,000 cfs. That volume could not flow through the culverts at SR 44 without overtopping the road. Ecology The upland communities surrounding the Samsula wellfield are primarily pine flatwoods and mixed pine forested areas. The proposed 1.93 mgd average day withdrawal quantity being recommended by the District for the Samsula wellfield will not adversely affect these upland communities because: (a) the upland communities do not rely on inundated or saturated conditions so the proposed consumptive use will not adversely affect the hydrology these upland communities rely on; and (b) the magnitude of the predicted drawdown will not cause a shift in vegetation meaning a change in the types of plants that already exist there. The wetland communities surrounding the Samsula wellfield site consist of cypress dome and bay swamp communities. With the projected drawdowns information for the Samsula wellfield, there will not be significant adverse impacts to uplands or wetlands that would be identifiable based upon the projected wellfield withdrawal rates as recommended by the District. Any potential for impacts has been reduced in that the current pumpage rates are projected to decrease. The proposed 1.93 mgd average day withdrawal quantity being recommended by the District for the Samsula wellfield will not cause the water table to be lowered such that these wetland communities will be significantly and adversely affected for the following reasons: The wetlands in the area of the Samsula wellfield lie in a sloped terrain. Underlying the site is a soil area known as a spodic horizon or a hardpan layer. The spodic horizon is an area where there is a deposition of organics and it has a different chemistry than the surrounding soils. The spodic horizon, when saturated, acts as a semi-impervious or impermeable layer which causes impedance of water as it goes through. This spodic horizon in the area of the Samsula wellfield is typically two feet below the soil surface. The predicted drawdown will not cause water levels to be dropped such that in normal wet season conditions, which is the time when hydrology to a wetland is most important, the spodic horizon will still be saturated so that water is coming into the wetlands through rainfall directly, as well as rainfall that falls on the adjacent uplands and moves laterally through the soils to the wetland above the spodic horizon. Thus, the spodic horizon will prevent a shift in the "water budget" of these wetlands such that the wetlands will not be harmed by the proposed use. The wetlands systems surrounding the Samsula wellfield are primarily densely forested systems with a fairly substantial accumulation of organic or muck type soils in the surface. The soils assist these wetlands in retaining moisture which provides a "built-in system" for the wetlands to withstand fluctuations in hydroperiods. The wetland systems surrounding the Samsula wellfield appear to have an altered hydrology. The identifiable impacts are ditches or shallow swales along State Road 44. The wetlands south of 44 in the vicinity of wells one, two and three have been bisected by roads and there are swales cut adjacent to those roads. The power line that runs north-south has cut off and eliminated half of a cypress wetland south of 44 and about half of a cypress wetland north of 44. It is possible that these ditches and roads may have caused the altered hydrology in these wetlands. It cannot be concluded that the current Samsula wellfield operation has caused this altered hydroperiod. However, the drawdown that is predicted to occur at the Samsula wellfield under the proposed 1.93 mgd average day withdrawal being recommended by the District is much less than the drawdown that is occurring from the current pumpage at this wellfield. The projected drawdowns from the proposed three wellfield configurations indicate less potential for impacts than the current two wellfields as far as Samsula is concerned. Thus, even if the wetlands surrounding the Samsula wellfield have been affected in any way by the current pumpage rate, the reduced drawdown rates that will result from the 1.93 mgd average day proposed pumpage rate will greatly improve this condition. Other than slight alteration along the edge of SR 44, the wetlands in the vicinity of Samsula wells five and six have not been significantly altered. No changes in vegetation and no apparent changes in hydrology occur in those areas. The cypress wetland north of SR 44 has a drainage ditch emerging to the east. Another wetland immediately north of SR 44, north of well four, is adjacent to the road and the roadside swale or ditch in that vicinity. The species of wildlife identified are ones that are adapted to altered conditions. Abundant wildlife is generally found living in association with improved pastures and close proximity to man. Most of the wetlands in the area of the Samsula wellfield, north and south of SR 44, are in improved pasture or where roads and power lines have been cut. There was evidence of impacts to the wetlands and some drainage. The edge of the cypress dome north of SR 44 has blackberries and other weedy type species along the margins of it. The wetland immediately southeast of well one at the Samsula wellfield was a healthy bay dominated area with ferns underneath. The lichen line on the trunk of the tree and the mosses indicate that the water has been up to or near the historical high within the past season or two. Otherwise, the lichens would grow at the base of the tree. At the Samsula wellfield site, there are no wetlands within the inner drawdown contour of 0.7. There are some wetlands between the 0.7 and the 0.5 contours. The upland communities in the vicinity of the proposed SR 44 wellfield are primarily pine flatwoods and improved pasture. In the pine flatwoods areas, the soils indicate that the water table extends from a height of 0.5 feet below land surface and down to a hardpan layer. The water table in the pine flatwoods fluctuates between the hardpan and 0.5 feet below land surface. The proposed 1.43 mgd average daily withdrawal which is being recommended by the District for the proposed SR 44 wellfield will not significantly and adversely affect these upland communities because these upland communities are not reliant on inundated or saturated conditions, and the proposed consumptive use will not cause a shift in hydrology such that the vegetation found in these communities will no longer be there. The wetland communities in the vicinity of the proposed SR 44 wellfield consist of cypress sloughs and cypress domes which also have herbaceous areas with them. The cypress dominated wetlands are on the northeastern portion of the site and the northwestern portion of the site extending down through the central and southeastern part of the site. Cypress dominated wetlands occur on the southwestern border with one in the east-central portion of the site. Between the cypress dominated wetlands and pine flatwoods are grass prairies. The Commission determined the hydroperiod of the wetlands using vegetative physical evidence or biological indicators, such as lichen lines and mosses, and soil physical evidence from soil probes, which are indicators of long-term and sometimes short-term changes. The wetland on the east-central portion of the proposed SR 44 wellfield site inundates to approximately six and one half inches. In the dry season, the soils dry out to 0.15 feet below land surface. In the wet prairie or wet grassy area, the water table seasonally fluctuates between the hardpan layer of 2.2 feet bls and a tenth or two-tenths of an inch above the surface as based on adventitious roots growing from a St. Johns wort plant species. The water table fluctuations explain the seasonal high and the seasonal low water elevations. The factors which most influence the wetlands and their hydrology are subsurface flow during the wet season, the runoff and direct rainfall. The proposed 1.43 mgd average daily withdrawal for the proposed SR 44 wellfield will not significantly and adversely affect these wetland communities because these wetlands are also underlain by a spodic horizon which, as in the case of the Samsula wellfield wetlands, functions to provide lateral movement of water into the wetlands. The predicted drawdowns for the proposed SR 44 wellfield will not lower the water levels in these wetlands so as to prevent the spodic horizon from performing this function. The recommended withdrawal rate of 1.43 mgd for the proposed SR 44 wellfield reduces the opportunity for impacts. The part of the wellfield site where the greatest drawdown of 0.34 feet occurs is the furthest away from the majority of the wetlands on the site. However, the wetland and soil types on the surface layer are different than the wetland and soil types found at the Samsula wellfield site. The District is recommending a pumpage rate for the proposed SR 44 wellfield that would result in a maximum .34 feet of drawdown in the surficial aquifer while recommending a pumpage rate that would result in a maximum .7 foot drawdown in the surficial aquifer for the Samsula wellfield. The wetlands at the proposed SR 44 wellfield site do not have the dense canopy as well as the accumulation of muck soils in the surface that the wetlands at the Samsula site have. Additionally, the wetlands in the vicinity of the proposed SR 44 wellfield site include herbaceous systems which tend to be shallower systems, not as deeply set as the forested cypress systems are, and therefore tend to be more sensitive to changes that occur in the top couple of inches of soil which is above the spodic horizon. Thus, the wetlands in the vicinity of the proposed SR 44 wellfield would be significantly and adversely affected if the Commission were permitted to withdraw water at a pumpage rate that would result in a drawdown of greater that .34 feet. The drawdowns upon which the evaluation of potential wetland impacts are based are predicted drawdowns. Monitoring and Proposed Conditions To provide additional assurance, the District has recommended a series of permit conditions, numbered 31 through 45 on the Commission Ex. 10-B, that will require the permittee to conduct extensive groundwater and surface water monitoring, as well as vegetative monitoring in the vicinity of the proposed SR 44 wellfield and the Samsula wellfield site. Condition number 31 identifies the overall program of wetland and ground and surface water monitoring. Condition number 32 requires the permittee to install surficial aquifer monitoring wells in the vicinity of the wellfield sites. These monitoring wells will be constructed below the spodic horizon and inside and outside the "area of concern" which is the area within the tenth of a foot drawdown contour at the wellfield sites. This condition will enable the District to analyze how the proposed use is affecting the overall groundwater levels unaffected by the spodic horizon. Placing these wells both inside and outside the area of concern will allow the District to determine if any change in groundwater levels is due to the wellfields or normal climatic patterns. Condition number 33 will allow the District to obtain a constant record of information to analyze what trends are occurring in the wetlands in the wellfields and to have sufficient data during normal climatic variations of the wet and the dry seasons to determine the presence of a trend. The required period of record collection, defined in this condition as the shorter of one calendar year or one consecutive wet to dry season, is a sufficient period of record collection because the purpose of this condition is to obtain a picture in time of the existing conditions in the wetlands surrounding the wellfields during the dry season and the wet season. Condition 33 requires the permittee to submit an annual hydrologic report to the District. This is a sufficient time period of reporting because the purpose of the report is to allow the District to accumulate and assess an entire year's of data or the entire dry to wet season variation. With the annual report, any adverse wetland vegetation changes can be detected prior to any permanent harm to the wetlands. Condition number 34 requires the permittee to install shallow piezometers and staff gauges in the monitored and referenced wetland areas. The monitored wetlands are the wetlands inside the "area of concern." The referenced wetlands are outside the "area of concern." Condition number 34 will allow the District to analyze the hydrology above the spodic horizon. This in turn will allow the District to evaluate the hydrology of the monitored wetlands against the hydrology of the referenced wetlands to determine if any adverse impacts are occurring in the wetlands due to the wellfields' operation. Condition Number 35 requires the permittee to submit surveyed cross- sections of each of the monitored wetlands and the referenced wetlands. This condition will allow the District to receive a linear view of both the monitored and referenced wetlands so that when the District receives the groundwater and surface water information required by condition number 34, it can assign that information to a picture, and know what the wetlands look like under varying water conditions. Condition number 36 requires the permittee to select referenced wetlands similar to the wetlands that are going to be monitored in the area of concern. This will ensure that the reference wetlands match vegetatively and hydrologically with the wetlands that are being monitored within the area of concern. Condition number 37 requires the permittee to install rain gauges at both wellfield sites. This will allow the District to compare rainfall to groundwater information and determine what the relationship is between water levels in the surficial aquifer and the amount of rainfall that has occurred. Condition number 38 requires the permittee to monitor, on a weekly interval, the water levels in each of the monitored wetlands and in the referenced wetlands and submit annual reports of this data. Condition number 39 requires the permittee to install continuous recorders on the staff gauges and piezometers in the reference and monitored wetlands. The information gathered will provide the District with detailed records of the water fluctuations in these wetlands systems relative to rainfall input. Condition number 39 requires the permittee to submit annual reports of the information gathered to the District. The annual report will allow the District to determine if any adverse trends are occurring in the wetlands. No permanent adverse change could occur to the wetlands communities surrounding either wellfield before the District receives this annual report. Condition number 40 requires the permittee to conduct baseline water quality monitoring at each of the monitored wetlands. If any adverse change does occur to the wetlands surrounding either wellfield, and if the permittee chooses to mitigate for this adverse change by augmenting the wetland systems, then this permit condition will allow the District to ensure that the water used to augment those wetlands is of the same quality as the water currently found in those wetlands. Condition number 41 requires the permittee to initiate a baseline vegetative monitoring program of the monitored and reference wetlands at both wellfields. This condition will allow the District to have a vegetative picture of the wetlands prior to any pumpage. Condition number 42 requires the permittee to conduct a vegetative monitoring program of the monitored and reference wetlands at both wellfields with the initiation of withdrawals. Condition number 43 requires the permittee to provide a wetland similarity assessment for both wellfields. The permittee must compare the results of the wetland vegetative monitoring program each year against the baseline vegetative monitoring of the same wetland and against the vegetative monitoring of the referenced wetlands. This condition will assist the District in determining if any adverse trends are occurring in the wetlands surrounding either wellfield. Condition number 44 requires the permittee to create two duplicate reference herbarium collections of the flora present in the monitored and referenced wetlands and the adjacent upland areas. This condition will ensure that there is consistency in the vegetative identification throughout the monitoring program. Condition number 45 requires the permittee to mitigate any harm to the wetlands that is detected from the monitoring required by other permit conditions. This condition does not require any particular form of mitigation. The wellfield withdrawals at the projected rates and the suggested permit rates should not have an impact on threatened or endangered plant or animal species in the Samsula wellfield area or the proposed SR 44 wellfield area. The monitoring program will provide the data to determine on a short- term or long-term basis whether the pumpage rates are causing impacts. Potential harm can be mitigated by adjusting the quantities and locations of withdrawal. V. ATTORNEY'S FEES AND COSTS The Commission seeks fees and costs from Petitioner pursuant to Section 120.59(6), Florida Statutes (1991). Such entitlement requires a showing that the Petitioner brought this case or filed a pleading for an improper purpose. While the evidence does show that certain pleadings filed by Petitioner (or his attorney who withdrew 24 hours prior to the beginning of the hearing) may have had as one purpose the delay of the hearing scheduled for March 24, 1992, the totality of the evidence establishes that Petitioner's purposes were not improper. Section 403.412(5), Florida Statutes (1991), establishes the right of any citizen of the state to intervene into "proceedings for the protection of air, water, or other natural resources of the state from pollution, impairment, or destruction " The actions of Petitioner in this proceeding were not clearly shown to be for delay, harassment or other improper purpose. In fact, Petitioner handled himself well as a pro se litigant after his attorney's untimely withdrawal. If anyone acted with an improper purpose in this proceeding, it was Peter Belmont, Nassau's attorney until he withdrew less than 24 hours prior to the hearing. The record shows that Belmont entered into the representation of Nassau with full knowledge that he would seek all possible delays in the proceedings. He engaged in no preparation for the hearing and he left Nassau unprepared also. Belmont's bad faith actions in this case however can only be determined and remediated by the Florida Bar, not by the undersigned through an award of fees and costs. Finally, there has been no delay in these proceedings. The petition was filed with DOAH on January 16, 1992. The District moved to consolidate it with two other pending case set for January 20, 1992. Those cases were voluntarily dismissed. An Initial Order was sent to the parties on January 21, 1992, seeking suggested dates for the hearing. The hearing was set to begin March 16, 1992, less than 60 days from the filing of the case. A one week continuance was granted and the case was heard beginning on March 24, 1992. If anything, this case has proceeded expeditiously.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the St. Johns River Water Management District enter a Final Order GRANTING the Utilities Commission of New Smyrna Beach's Consumptive Use Permit, subject to the March 9, 1992 permit conditions proposed by the District (Commission's Exhibit 10-B). RECOMMENDED this 13th day of May, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0246 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, William Nassau Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(3) and 5(10). Proposed findings of fact 1-3, 6-9, 11, 12, 14, 19, and 22 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 15-18, 20, and 21 are unsupported by the credible, competent and substantial evidence. Proposed finding of fact 10 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Utilities Commission of New Smyrna Beach Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-19(15-21); and 35(12). Proposed findings of fact 12 and 20 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 32-34 are irrelevant. Proposed findings of fact 21-31 and 36-111 are subordinate to the facts actually found in this Recommmended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, St. Johns River Water Management District Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-21(22-46); 22(16); 23(7); 25(19-21); 29-31(12-14); and 32-142(43-153). Proposed findings of fact 24 and 26-28 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: William Nassau 4680 Cedar Road New Smyrna Beach, FL 32168 Nancy B. Barnard Eric Olsen Attorneys at Law St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Roger Sims Rory Ryan Lynda Goodgame Attorneys at Law Holland & Knight P.O. Box 1526 Orlando, FL 32802 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429
Findings Of Fact Background In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), an intervenor in this case, filed a petition toe initiate rulemaking for single source reclassification of groundwater under the existing provisions of Rule 17-3.403, Florida Administrative Code (F.A.C.). In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties classified Class G-I groundwater, and to thereby provide them the most stringent water quality protection accorded groundwaters of the state. At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed the Department of Environmental Regulation (Department) to review the existing G-I rule, prepare proposed revisions, and present its recommendations to the ERC. Following the ERC directive, the Department held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17- 4.245, F.A.C., at issue in these proceedings. On October 31, 1986, the Department duly noticed the proposed rules in volume 12, number 44, of the Florida Administrative Weekly. The notice interested parties that a public hearing would be held on December 16, 1986, before the ERC. 1/ On December 16-17, 1986, the ERC held a public hearing at which time it considered the rules recommended by the Department. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in volume 13, number 3, of the Florida Administrative Weekly on January 16, 1987. Petitioners and Intervenors Petitioners, Adam Smith Enterprises, Inc., and Alliance for Rational Groundwater Rules (Case No. 86-4492RP), and Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86- 4705R), filed timely petitions to challenge the validity of the proposed rules, which petitions were consolidated for hearing. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Council, Inc.; and Pasco County. These Intervenors' interests were aligned with those of petitioners. Petitions for leave to intervene were a1so granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens of Citrus County, Inc. These Intervenors' interests were aligned with those of the Department and the ERC. Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), is the owner/developer of a 3,800-acre development of regional impact (DRI) to be known as Trinity Communities. This development, which has been in the acquisition and planning stages for almost 5 years, is currently undergoing DRI review and Adam Smith anticipates that it will receive its development order by September 1987. The Trinity Communities development is located predominately in Pasco County, with just over 250 acres of its lands located in Pinellas County. These properties are predominately open pasture land, and are bordered on the north, east and west by roads and on the south by Hillsborough and Pinellas Counties. As proposed, the Trinity Communities development will include 1100 acres of parks, golf courses, and other open areas. The remaining lands will be developed to accommodate 9500 dwelling units, as well as industrial and commercial uses to service the community, over a 20-year period. At today's market value, the property represents an investment of approximately 28 million dollars. Abutting the Trinity Communities development is the Eldridge-Wilde Well Field. This well field is covered by consumptive use permits issued by the Southwest Florida Water Management District (SWFWMD), and contains major public community drinking water supply wells as defined by the rules at issue in this proceeding. Of these wells, 5 are located within 9.63 feet and 181.5 feet of the proposed development's property line, and 5 are located with 204.72 fee and 297.5 feet of its property line. Petitioner, Alliance for Rational Groundwater Rules (Alliance), is an association of landowners who united to educate themselves about the proposed rules. The proof failed, however, to establish whether Alliance had ever elected any officers or directors, or the magnitude of its membership. Consequently, the proof failed to establish that a substantial number of its members, although not necessarily a majority, were substantially affected by the proposed rules, and that the relief requested by it was of a type appropriate for it to receive on behalf of its members. Petitioner, Aloha Utilities, Inc. (Aloha Utilities), is a utility certified by the Florida Public Service Commission to provide water and sewer service to two separate service areas in southern Pasco County. Currently, Aloha Utilities operates an 850,000 gallon per day (gpd) sewage treatment facility (Aloha Gardens) and a 1.2 million gpd sewage treatment plant (Seven Springs). It also operates 10-11 producing wells, at least 7 of which are permitted by SWFWMD to withdraw at least 100,000 gpd. One of these wells is located approximately 1/4-1/2 mile from an Aloha Utility sewage treatment plant. At least 3 of Aloha Utilities' wells which are permitted to withdraw 100,000 gpd or more, will service or are servicing the Riverside projects and Aloha Gardens Unit Number 12 project discussed infra. Consequently, the proof establishes that Aloha Utilities operates a major public community drinking water supply system as defined by the subject rules. The Aloha Gardens facility is under a Department order to expand its effluent disposal capacity. To satisfy the Department's order and the need for increased disposal capacity, Aloha Utilities commenced condemnation proceedings 8-12 months ago to secure the needed property. While the condemnation proceeding is not yet completed, Aloha Utilities has already expended considerable sums for engineering studies and attorney's fees in its efforts to acquire the property. That property is located approximately 1/2 mile from an existing well that is permitted for an average daily flow of at least 100,000 gpd. The effluent disposal capacity of the Seven Springs facility is also being expanded to meet existing and future demand. In April 1987, Aloha Utilities acquired a 27-28 acre parcel of land immediately adjacent to its existing facility. Upon these lands, Aloha Utilities proposes to construct percolation ponds, a rapid rate land application effluent disposal process. As sited, these ponds would be located 1/2 to 3/4 of a mile from a well permitted for an average daily flow of 100,000 gallons or more. 2/ Petitioners, Interphase, Inc., Phase 1 Homes, Inc., and Tahitian Development, Inc., are corporations with common management which are developing three separate but geographically proximate projects in Pasco County. These projects will be, or are, serviced by Aloha Utilities. Interphase, Inc., is the owner/developer of a 100- acre tract known as Riverside Village Unit Number Four. This property is currently being developed to include 57 acres dedicated to single family use and 43 acres dedicated to multifamily use, and will require the installation of stormwater facilities and underground sewage transportation facilities. Two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more are located 1/2 mile and 1/3 mile, respectively, from this development. Interphase, Inc., is also the owner of a 17-acre parcel of vacant land in Pasco County that is zoned commercial. This property is located within 400 feet of Aloha Utilities' Seven Springs sewer treatment plant, and its development will require the installation of underground sewage transportation facilities. Phase 1 Homes, Inc., is the owner/developer of a project known as Riverside Village Townhouses. This project is fully developed and is currently serviced by Aloha Utilities. Located within 1/2 mile of the development are two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development, Inc., is the owner/developer of a 40-acre tract known as Riverside Villas. Twenty of these acres have been developed and some of the units sold. The remaining 20 acres are currently under development. In developing its remaining 20 acres, Tahitian Development would be required to install stormwater drainage systems and sewage transportation lines to connect with Aloha Utilities. Located within 1/2 mile of the development are wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development also owns a 40-acre parcel in Orange County which it plans to develop for light industrial uses such as an industrial park or an office complex. Such development would result in at least a 40 percent impervious surface, including building tops, within that 40-acre parcel, and require the installation of a sewage transportation system and a stormwater drainage system. Petitioner, A.C. & R., Inc., is the owner/developer of a project in Pasco County known as Aloha Gardens Unit Number 12. The project, which currently is represented by 40-50 developed lots, is located just north of the Aloha Gardens sewage treatment facility, and is serviced by Aloha Utilities. Located within 1/2 mile of the development that is permitted for an average daily flow of 100,000 gallons or more. Petitioner, Great Cypress Mobile Village, Inc., is the owner/developer of a 149 unit mobile home park in Pasco County. Twenty of these units are completed and ready for occupancy. Completion of the project will require the installation of additional sewer lines. Located at the interior of the property is a sewage treatment plant owned by Northern Utilities which services the project, and within 600 feet of the project's boundary there is a well which services that utility. The capacity of that well was not, however, demonstrated in these proceedings, nor was it shown whether such well was part of a community water system. Petitioner, Barrington, Ltd. is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rules. Intervenor, Florida Electric Power Coordinating Group, Inc. (FCG), a Florida corporation, is an association of Florida's electric utilities, and is composed of 37 members. The FCG has, as part of its internal organization, an environmental committee whose purpose is to participate in regulatory development and provide mutual member assistance with regard to water related matters. This committee was authorized by the FCG executive committee to participate in the development of the rules at issue in these proceedings, as well as Intervene in these proceedings, to represent and protect the interests of FCG members. The FCG participated in the development of the subject rules by the Department, and was granted full party status by the ERC during that rulemaking process. The members of FCG are owners and operators of electric power generating facilities. These facilities“ include the power plant and ancillary facilities such as substations. Incident to the operation of these facilities are wastewater discharges associated with the production of electricity and stormwater discharges. One of these facilities, Gainesville Regional Utilities' Deer Haven generating station is located across Highway 441 from a major community drinking water supply well. Intervenor, Florida Land Council, Inc., a Florid corporation, is composed of 12 primary members who own large tracts of land in interior Florida, and who are engaged primarily in agribusiness. The Land Council's purpose is to protect the asset value of its members property and, because of that purpose, it is concerned with environmental regulations, growth management regulations, land use regulations, and comprehensive planning. To protect its interests, the Land Council sought leave to intervene in these proceedings. There was, however, no proof that any lands owned by any member of the Land Council were proximate to any major public community drinking water well. Intervenor, Pasco County, is the owner/operator of 25 wastewater treatment plants with capacities In excess of 100,000 gallons per day, and has under construction, or in the design stage, additional facilities with capacities in excess of 100,000 gallons per day. The construction of these new facilities will require the installation of new lines for the collection of wastewater. Pasco County's current, as well as its planned, wastewater treatment facilities will utilities a rapid rate land application effluent disposal process. Within a mile of any wastewater treatment plan operated by Pasco County can be found a major public community drinking water well as defined by the rules at issue in these proceedings. Pasco County also owns and operates wells within the county with permitted withdrawal rates exceeding 100,000 gpd, and participates in the ownership and management of their wells with permitted withdrawal rates exceeding 100,000 gpd through West Coast Regional Water Supply Authority. Pasco County currently has plans to add new production wells in the county with an average daily pumpage in excess of 100,000 gallons per day. Intervenor, West Coast Regional Water Supply Authority (West Coast), is an interlocal government body created in 1974 to develop, store, and supply water to its member governments so that all citizens within the areas served by the authority may be assured an adequate supply of water. Member governments served by WCRWSA are Hillsborough County, Pasco County, and the cities of St. Petersburg and Tampa. Wellfields operated by West Coast are the Starkey Wellfield located in west central Pasco County, which serves the citizens of New Port Richey and Pasco County; the South-Central Hillsborough Regional Wellfield located in south-central Hillsborough County, which serves the citizens of Hillsborough, County; the crossbar Ranch Wellfield located in north-central Pasco County, which principally serves the citizens of Pinellas, County; the Cypress Creek Wellfild located in south-central Pasco County, which serves the citizens of Hillsborough, Pinellas, and western Pasco Counties and the City of St. Petersburg; the Northwest Hillsborough Wellfield located in northwest Hillsborough County, which serves the citizens of Hillsborough County; the Section 21 Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg; and, the Come-Odessa Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg. 3/ Each of the wellfields operated by West Coast are public community water systems, and contain wells permitted to withdraw in excess of 100,000 gallons per day. Collectively, these wellfields serve a total population of 800,000 persons. Intervenor, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), is a not-for-profit corporation, was chartered in 1981, and has 350 members who obtain their drinking water from operational community water supply wells permitted for over 100,000 gallons per day in Inverness, Crystal River, Floral City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus County, Florida. The purpose of Concerned Citizens is to protect the natural resources of Citrus County through planning and zoning regulations, and local and state legislation and regulations. It was granted party status by the ERC. General aspects of the proposed rules The proposed rules establish new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the existing rule, the ERC could reclassify an aquifer or portion of an aquifer as G-I within specified boundaries upon a finding that: The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and The designated use is attainable, upon consideration of environmental, techological, water quality, institutional, and social and economic factors. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was: ...within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifer... and, upon consideration of: ...environmental, technologial, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. As with thee existing rule, the proposed rules require that rulemaking procedures be followed to actually designate a G-I aquifer or aquifer segment at any particular location. The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells", community water systems that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater, by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology, of 5 years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharge to groundwater would be prohibited or restricted. A major emphasis of the proposed rules is to restrict discharges to groundwater within the zones of protection. For example, the rules eliminate the zone of discharge within the zones of protection, and require that new discharges to groundwater of treated domestic effluent meet the groundwater criteria specified in rule 17-3.404, F.A.C., prior to discharge. 4/ Additionally, such wastewater treatment facilities would be required to pre-treat industrial wastewater, provide daily monitoring to insure proper treatment plant process control, and provide 24 hour a day attendance of a wastewater operator under the general supervision of a Class A certified wastewater operator. New underground lines for the transport of domestic raw wastewater would be required to be constructed so that no more than 50 gallons per inch of pipe diameter per mile per day could leak into the ground. Within the 5 year zone of protection, there are no restrictions on stormwater discharges for residential developments. However, discharges from new stormwater facilities serving an area forty acres or larger with a forty percent impervious surface, excluding building tops, are required to monitor the discharge. Construction and operation of new sanitary landfills would be prohibited. As previously noted, to be eligible for reclassification as a G-I aquifer, the aquifer or aquifer segment under consideration must be leaky confined or unconfined. Whether the aquifer is leaky confined or not will be determined through application of the "Vv" and "Tv" formulae contained in the proposed rules, and the zones of protection will be established by reference to the "r" formula contained in the proposed rule. To date, neither the Department nor any party has applied the "Vv" and "Tv" formulae to identify wells hat are withdrawing from unconfined or leaky confined aquifers, nor has anyone delineated any zones of protection by application of the "r" formula. The Department has, however, identified those areas of the state at which it is likely that major community drinking water supply wells are withdrawing from such aquifers. Based on this identification, the Department has contracted with the U.S. Geological Survey (USGS) to "map" the Middle-Gulf region (Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by applying the "Vv" and "Tv" formulas to each well permitted to withdraw 100,000 gpd or more to determine if it is withdrawing from such aquifers and, if so, to delineate proposed zones of protection around such wells or wellfields through application of the "r" formula. The USGS is currently mapping the Middle-Gulf region. Pertinent to this case, the Department has identified all of Pasco and Pinellas Counties, the northern half of Hillsborough County, and most of Orange County including Orlando, as areas within which wells are most probably withdrawing from unconfined or leaky confined aquifers, and for which aquifers the Department will seek G-I reclassification. Under the circumstances, the parties have established, except as heretofore noted, that there is a reasonable likelihood that the proposed rules will substantially affect their interests. The rule challenge The gravamen of the protestant's challenge is that certain definitions and formulae continued within the proposed rule are vague, ambiguous, or not supported by fact or logic. The Protestants' also challenge the adequacy of the economic impact statement. The Protestants concerns are addressed below. Definitions Rule 17-3.021, as amended, would define "Confined Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as follows: (7) "Confined Aquifer" shall mean an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself. For the purpose of G-I, it shall mean an aquifer confined from above by a formation(s) which restricts the movement of groundwater vertically from the water table to the top of the confined aquifer for a period of more than five years * * * (16) "Leaky Confined Aquifer" shall mean, for the purposes of G-I, an aquifer confined from above by a formation(s) which allows groundwater to move vertically from the water table to the top of the leaky confined aquifer in five years or less. * * * (34) "Unconfined Aquifer" shall mean an aquifer other than a confined aquifer. For the purpose of G-I it shall mean an aquifer other than a confined or leaky confined aquifer. 5/ Protestants contend that the definition of "confined aquifer" and "leaky confined aquifer" are vague and meaningless because they are "defined by use of the phrase being defined". Accordingly, they conclude that proposed rule 17-3.021(7) and (16) must fall because they are without thought and reason, irrational and vague. Protestants further contend that since the definitions of "confined aquifer" and "leaky confined aquifer" are flawed, proposed rule 17-3.021(34), which defines unconfined aquifer, must also fall. The Protestants' contentions are not persuasive. If one were restricted to the definition of "confined", "leaky confined" and "unconfined" aquifer to glean their meaning, the rules might be considered vague. However, these definitions are, as they specifically provide, "for the purpose of G-I" and they must be read in context with the balance of the rule. When so read, it is apparent that "top of the confined aquifer" or "top of the leaky confined aquifer" is the top of the aquifer that has been calculated as confined or leaky through manipulation of the "Vv" and "Tv" formulae. Under the circumstances, the subject definitions are not vague, arbitrary or capricious. Proposed rule 17-3.021(20) provides: "New Discharge" shall mean, for the purpose of G-I, a discharge from a new installation; or a discharge from an existing permitted installation that has been altered, after the effective date of G-I reclassification, either chemically, biologically, or physically or that has a 211 22 different point of discharge, and which causes a significantly different impact on groundwater. Protestants contend that the definition of "new discharge" is vague, arbitrary and capricious because existing installations would be classified as new dischargers, and subject to the more stringent requirements of the proposed rules, whether the alteration of their discharge significantly improved or adversely affected groundwater. As proposed, the rule would so define new discharge, and it is not vague or ambiguous. The proof demonstrated, however, that the Department only proposed to define, as new dischargers, those existing installations whose altered discharge caused a significantly different negative impact on groundwater. The Department conceded this point, and offered no proof to demonstrate the reasonableness of classifying existing installations that improve their discharge as new discharges. Under the circumstances, proposed rule 17-3.021(20) is arbitrary and capricious. Proposed rule 17-3.021(35) defines "underground storage facility or underground transportation facility as follows: "Underground storage facility" or "underground transportation facility" shall mean that 10 percent or more of the facility is buried below the ground surface. This proposed rule is, however, only pertinent to proposed rule 17-4.245, which addresses the permitting and monitoring requirements for installations discharging to groundwater. Pertinent to this case, proposed rules 17-4.245(3)(c) and (d) establish construction requirements for the following facilities within the five year zone of protection: Underground storage facilities. An underground storage facility includes any enclosed structure, container, tank or other enclosed stationary devices used for storage or containment of pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Sect ion 403.031(1), F.S. Nothing in this paragraph is intended to include septic tanks, enclosed transformers or other similarly enclosed underground facilities.... Underground facilities for transportation of wastewater or pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Section 403.031(1), F.S. excluding natural and liquified petroleum gas. Underground facilities for transportation of waste effluent or pollutants or contaminants include piping, sewer lines, and ducts or other conveyances to transport pollutants as defined in Section 376.301(12), F.S., and contaminants as defined in Section 403.031(1), F.S.... Protestants contend that the proposed rules are contained in two separate chapters of the Florida Administrative Code with no bridge between them. Under such circumstances, they contend the rules fail to adequately define either facility in either chapter, and that the rules are therefore vague, arbitrary and capricious. Protestants' contention is not persuasive. Proposed rule 17-3.021(35) defines "underground storage facility" or "underground transportation facility" as meaning that 10 percent or more of the facility is buried below the ground surface. Proposed rules 17-4.245(3)(c) and (d) address what type of facility is included within the terms "underground storage facility" and "underground transportation facility." Notably, Rule 17-4.021, F.A.C., provides: Definitions contained in other chapters of the Department's rules may be utilized to clarify the meaning of terms used herein unless such terms are defined in Section 17-4.020, F.A.C., or transfer of such definition would defeat the purpose or alter the intended effect of the provisions of this chapter. Under the circumstances of this case, the rules are appropriately read together. So read, the construction requirements for "underground storage facilities" and "underground transportation facilities", as required by proposed rule 17-4.245(3)(c) and (d), are applicable if 10 percent or more of the containment device used for the storage or transport of pollutants is buried below the ground surface, and the proposed rules are not vague, arbitrary or capricious. Proposed rule 17-3.021(39) defines "Zones of Protection" as follows: "Zones of Protection" shall mean two concentric areas around a major public community drinking water supply well(s) or wellfield(s) drawing from a G-I aquifer whose boundaries are determined based on radii from the well or wellfields of 200 feet and five years groundwater travel time respectively. Protestants contend that the definition of "Zones of Protection" is vague, arbitrary and capricious because nowhere within the proposed rules is "G-I aquifer" defined. protestants' contention is not persuasive. Proposed rules 17-3.403(1) and (7) adequately explain what is meant by "G-I aquifer", and proposed rule 17-3.403(8) sets forth the metodology for calculating the zones of protection. The definition of "Zones of Protection", set forth in proposed rule 17-3.02(39) is not vague, arbitrary or capricious, because of any failure to define "G-I aquifer." Mapping Priorities When considering whether to reclassify an aquifer or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires that the aquifer or aquifer segment: Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones of protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. The mapping priority directive referred to in purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC that Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties, referred to as the Middle-Gulf region, be mapped first. That directive has not been reduced to writing and, consequently, a copy thereof has never been available for inspection. Categories of G-I Aquifers and determination of zones and protection Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed rule 17- 3.403 (7) provides: Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met: That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifers.... (b)(. reserved.) Proposed rule 17-3.403(8) provides: Determination of the boundaries of the zones of protection. (a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: percent.x4n where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. Protestants contend that the foregoing provisions of the proposed rules are vague, arbitrary and capricious because the wells that would be subject to and around which a zone of protection would be established cannot be identified or, if identifiable, do not comport with the Department's intent or interpretation. Protestant's concerns are not without merit. To be eligible for consideration as a G-I aquifer, proposed rule 17-3.403(7) requires that the aquifer segment be within the zones of protection of a "major public community drinking water supply well(s) or wellfield(s). Proposed rule 17- 3.021(17) provides that "major public community drinking water supply" shall mean: those community water systems as defined in Section 17-22.103(5), F.A.C., that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater. Community water system" is defined by Section 17-22.103(5) as: a public water system which serves at least IS service connections used by year- round residents or regularly serves at least 25 year-round residents. Facially then, the proposed G-I rules are applicable to "community water system" that hold a consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater", and which are withdrawing from unconfined or leaky confined aquifers. Notably, the rule does not ascribe the 100,000 gpd permitted rate of withdrawal to each well, but to a permit held by a community water system. Accordingly, under the literal reading of the proposed rules, each well covered by the consumptive use permit would be subject to a zone of protection regardless of its individually permitted rate, so long as it was withdrawing from an unconfined or leaky confined aquifer. While there may be legitimate reasons to designate zones of protection around wells, regardless of their individual permitted rate when the community water system holds a consumptive use permit to withdraw groundwater at a 100,000 gpd average, the Department advanced none. To the contrary, the Department contended that zones of protection were only to be established around a well that was permitted to withdraw an average daily amount of 100,000 gallons or greater. Under the circumstances, the provisions of proposed rules 17-3.403(7) and (8) are arbitrary and capricious. 6/ The "Vv" and "Tv" formulae Proposed rule 17-3.403(7)(a) prescribes the methodology where by vertical travel time will be calculated, and therefore whether a particular aquifer will be classified as confined or leaky confined. To this end, the proposed rule provides: ... Determination of vertical travel time for leaky confinement will be by application of the following formulae: Vv= Kv h/nl where: Vv= vertical velocity (feet/day). Kv= vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day). h= head difference between water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet). n = effective porosities of the surficial aquifer and underlying confining bed materials. 1 = distance from the water table to the top of the producing aquifer (feet). Tv= 1/Vv 365 where: Tv= vertical travel time (years). 1 = same as above. Vv= same as above. The "Vv" formula and the "Tv" formula are valid formulae, and are commonly used by hydrogeologists to calculate the vertical velocity and vertical travel time of groundwater. As proposed, the formulae present a reasonable methodology for computing the vertical velocity and vertical travel time of groundwater if the well is producing from one aquifer. The formulae cannot, however, as hereafter discussed, be reasonably applied if tee well is producing from multiple aquifers or if another aquifer intervenes between the surf aquifer and the producing aquifer. While not the most prevalent occurrence in the state wells in the Middle-Gulf regions often do penetrate more than one aquifer and do produce water from more than one aquifer. The rule defines the "Kv" element of the "Vv" formula as the "vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day)." This is a reasonable definition and will produce a scientifically valid result provided the well does not penetrate multiple aquifers. Should the well penetrate multiple aquifers, the values derived for vertical velocity ("Vv") and vertical travel time ("Tv") will not be accurate since the hydraulic conductivities of the intervening aquifers are not, by the rule definition, factored into the calculation of "Kv". Under such circumstances, whether an aquifer was classified as confined or leaky confined would not be determined by a valid "Kv" but, rather, by chance. Protestants also contend that the rule is vague, arbitrary and capricious because it does not specify the methodology by which "Kv" is to be calculated. There are, however, methodologies commonly accepted by hydrogeologists to derive a scientifically valid "Kv", whether the well penetrates one or more than one aquifer. The infirmity of the rule is not its failure to specify a methodology, but its to include data necessary to produce a meaningful result. The rule defines the "n" element of the Vv formula as "effective porosities of the surficial aquifer and underlying confining bed materials." This is a reasonable definition and will, though the application of commonly accepted methodologies, produce a scientifically valid result. 7/ The rule defines the element "Delta h" in the Vv formula as the "head difference between the water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet)", and defines the element "1" as the "distance from the water table to the top of the producing aquifer (feet)." These elements are utilized in the formula to calculate a gradient, and must be measured using the same points of reference to yield a meaningful result. To this end, the proof demonstrates that the definitions are reasonable since they utilize the same points of reference, and that when applied in accordance with accepted hydrogeologic practice will produce a scientifically valid gradient. (See Department exhibit 7). Protestants contend, however, that the definitions of "Delta h" and "1" are vague, arbitrary and capricious because they do not specify when the measurements should be made, do not define "producing aquifer", and do not define "top" of the producing aquifer. For the reasons that follow, Protestants' contentions are found to be without merit. While a water table is a dynamic surface subject to frequent, if not daily fluctuation, resulting from variations in rainfall and the demands of man, and while a potentiometric surface is likewise a dynamic elevation that changes with time and season, protestants failed to demonstrate that there was any particular date or dates that would be most appropriate to make such calculations. Rather, protestants contended that unless such measurements were taken contemporaneously, any derivation of "Delta h" and "1" would not be reliable. While such might be the case, the rule does not mandate a divergence from the accepted hydrogeologic practice of taking such measurements contemporaneously. While the rule does not define "producing aquifer," it is an accepted hydrogeologic term and not subject to confusion. The only confusion in this case was the introduction of the issue of multiple producing aquifers and protestants' contentions that this rendered the Vv formula vague, arbitrary and capricious since it did not factor in such a consideration. Protestants' contention does not, however render the term "producing aquifer" vague. The sole purpose of the Vv and Tv formulas are to determine whether the aquifer from which water is being produced is leaky confined. To establish this, the formulae are applied to calculate whether the vertical travel time is five years or less. If a well is withdrawing water from more than one aquifer it may be necessary to calculate Vv and Tv for each aquifer to discern which of those aquifers are within the 5 year vertical travel time threshold, and therefore subject to G-I reclassification. To this end the rule is not vague, and would adequately address the multiple producing aquifer scenario. While the rule doe not define "top" of the producing aquifer, this term is an accepted hydrogeologic term and is not subject to confusion. In application there may, however, be disagreements among hydrogeologists as to where this line should be established because geologic boundaries are fine gradations, and not sharp lines which would lend themselves to the designation of precise points of reference. This is not, however, a failure of the rule, but a peculiarity of nature, and is subject to scientific proof. Notably, protestants did not demonstrate that "top" of the producing aquifer could be defined with reference to a fixed point. Under the circumstances, "top" of the producing aquifer is a reasonable reference point. Zones of Protection Proposed rule 17-3.408 provides: Determination of the boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping), measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: QT 2 3.14 hn where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used: Floridan .05 Sand and Gravel .2 Biscayne .15 Surficial .2 The Department shall use more site-specific values for "Q", "n", or "h" when available for designation of the zones of protection by the Commission. Proposed rule 17-3.403(8)(a) provides that the inner zone of protection shall be based on a radius from the wellhead or wellfilled, as appropriate, of 200 feet. While denoted as an arbitrary radius, the 200 foot radius was not derived without fact or reason. Rather, it was a result reached at the workshops after consideration of existing regulations that establish buffer zones of 200-500 feet between a public water supply and a pollution source. Conceptually, the 200 foot zone was adopted because it is so small and so close to the well that it essentially constituted a zone of protection of the well head by preventing contaminants from moving into the well opening directly or the annular space around the well casing. Accordingly, the 200 foot zone has a reasonable basis. Its actual delineation is, however, as flawed as that of the five year zone discussed infra. The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The basis for the "r" formula is the formula used to calculate the volume of a cylinder. That formula, V = pi r2 h, yields a simple volumetric measurement without any consideration of velocity. By the introduction of the element "n" (effective porosity), the "r" formula introduces a velocity component which would, properly applied, produce a radius equal to the distance groundwater would flow in 5 years. 8/ As proposed, however, the rule would establish a meaningless line around a well. Under the proposed rule, the Department would calculate "r" based on specified effective porosities ("n") for the Floridan, Biscayne, sand and gravel, and surficial aquifers absent site specific data. The Department is, however, under no requirement to generate site specific data, and currently is mapping the Middle-Gulf region based on the values established by the rule. Absent chance, the areas mapped will bear no relationship to groundwater travel time. The lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. By assuming "n", the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. 9/ The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology. The element "Q" in the "r" formula is defined as the "permitted average daily flow from the well (measured in cubic feet per day)." Protestants contend that such definition is vague, arbitrary and capricious because the Department proposes to rely on consumptive use permits issued by the various water management districts to derive "Q", and such permits would not necessarily provide the requisite data. While the proof demonstrates that "Q" cannot always be derived by reference to a consumptive use permit, this does not render the definition of "Q" vague, arbitrary, or capricious. Rather, "Q" is a factual matter, and subject to a factual derivation through reference to consumptive use permits and other site specific data. The element "T" in the "r" formula is defined as "five years (1825) days." By its inclusion, the Department proposes to circumscribe the outer zone of protection at five years groundwater travel time. The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within an area proximate to a public water supply for public health and safety concerns. The five year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to groundwater a period of time should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply. The five years proposed by the rule was not, however, founded on fact or reason. During the workshops that under scored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took 10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and it discovery. Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five-year standard. Such standard was not the result of any study to assess its validity, and no data, reports or other research were utilized to derive it. In sum, the five- year standard was simply a "compromise", and was not supported by fact or reason. As previously noted, the lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. The effective porosity of those materials in the Floridan aquifer canvary from to .4 at various places. The rule proposes, however, to use an effective porosity for the Floridan aquifer of .05 to establish "r." The value ascribed to "n" is a critical value, as previously discussed in paragraph 65. It also has a profound impact on the aeral extent of the zone of protection. For example, assuming "Q" equals 3 million gallons and "h" equals 600 feet, an "n" of .02 would result in a radius of 4,406 feet or 1,400 acres, an "n" of .03 would result in a radius of 3,578 fee or 934 acres, an "n" of .05 would result in a radius of 2,787 feet or 560 acres, and an "n" of .2 would result in a radius of 1,393 feet or 140 acres. While an effective porosity of 05 for the Floridan aquifer may be a reasonable value at a particular site, it is not a value that can be reasonably ascribed to the Floridan in general. For this reason, and the reasons heretofore set forth, the rule's specification of an effective porosity of .05 for the Floridan aquifer is unreasonable. Proposed rule 17-3.403(8)(a), sets forth the manner in which the zones of protection will be drawn around a well or wellfield. That proposed rule provides: For well fields whose individual zones of protection overlap due to clustering, a single zone of protection will be calculated in the following manner: Using the permitted average daily withdrawal rate of the wells with overlapping zones of protection, the area on the surface overlying the aquifer equal to the sum of the areas of the five year zones of protection of the individual wells, shall be used to define the area which encircles the perimeter of the wellfield. In cases where a zone of protection of a single well protrudues beyond the calculated perimeter or when the configuration of the wellfield is irregular, the perimeter will be shaped to accommodate the configuration. The surface are encircling the perimeter of the wellfield shall not exceed the total surface area of the overlapping zones of protection for individual wells. In the case of unclustered wells within a wellfield, individual zones of protection around each well will be calculated. As previously discussed, the proposed G-I rules are facially applicable to "community water systems" that hold a " consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater," and which are withdrawing from unconfined or leaky confined aquifers. Under proposed rule 1773.403(8)(a), the five-year zone of protection would be drawn around each of these wells. If the wells are located so close to each other that the five year zones of protection are overlapping (clustered), those wells would be deemed a wellfield by rule definition and a five year zone of protection would be established around it. The proposed rule's description at how to determine and configure a zone of protection around a wellfield is however, vague and ambiguous. While the rule provides that when the configuration of the wellfield is "irregular", the perimeter will be shaped to accommodate the configuration", it sets forth no standard by which the perimeter will be established. Effectively, the rule vests unbridled discretion in the Department to establish the configuration of a wellfield. The Economic Impact Statements Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared economic impact statements for the proposed revisions to Chapters 17-3 and 17-4, Florida Administrative Code. The economic impact statements were prepared by Dr. Elizabeth Field, the Department's chief economist, an expert in economics. Dr. Field developed the economic impact statements by examining the proposed rules and discussing their potential impact with Department staff. Additionally, Dr. Field attended the public workshops that were held concerning the proposed rules, and solicited input from those participants. The Florida Home Builders Association and the Florida Petroleum Council submitted data for her consideration, but none of the petitioners, although some were represented at such workshops, responded to her requests for information. The economic impact statements prepared by Dr. Field to address the proposed rules conclude that, apart from the cost to the Department for mapping, there are no direct costs or economic benefits occasioned by the rules. Dr. Field's conclusion was premised on the fact that the proposed rules only establish the eligibility criteria for reclassification of an aquifer to G-I and the standards for discharge to that aquifer. Under the proposed rules, further rulemaking would be required to actually designate a specific aquifer as G-I, and delineate a zone of protection. 10/ Pertinent to this case, proposed rule 17-3.403, provides: The intent of establishing G-I eligibility criteria is to determine which aquifer or aquifer segments qualify for potential reclassification to G-I aquifers. Adoption of these criteria does not imply nor does it designate aquifer or aquifer segments as G-I. Such designation can only be achieved through reclassification by the Commission after eligible segments have been mapped by the Department. (6)... the following procedure shall be used to designate Class G-I aquifers: Rulemaking procedures pursuant to Chapter 17-102, F.A.C., shall be followed; Fact-finding workshops shall be held in the affected area; All local, county, or municipal governments, water management districts, state legislators, regional water supply authorities, and regional planning councils whose districts or jurisdictions include all or part of a proposed G-I aquifer shall be notified in writing by the Department at least 60 days prior to the workshop; A prominent public notice shall be placed in an appropriate newspaper(s) of general circulation in the area of the proposed G-I aquifer at least 60 days prior to the workshop. The notice shall contain a geographic location map indicating the area of the zones of protection and a general description of the impact of reclassification on present and future discharges to groundwater. A notice of a G-I workshop shall be published in the Florida Administrative Weekly prior to the workshop(s). At least 180 days prior to the Commission meeting during which a particular zone of protection will be considered for reclassification, the Department will provide notice in the Florida Administrative Weekly and appropriate newspaper(s) of the intended date of the Commission meeting. The Commission may reclassify an aquifer or aquifer segment as a G-I aquifer within specified boundaries upon consideration of environmental, technological, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. When considering a reclassification an aquifer or aquifer segment shall: ....(Be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined or from leaky confined aquifers.).... Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones or protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. (Emphasis added). While, if and when applied, the proposed rules would certainly have a direct economic impact as a consequence of a reclassification of an aquifer to G-I and the designation of a zone of protection, as well as the standards for discharge to that aquifer, such costs at this stage are not direct or are not quantifiable. When mapped and the zones of protection identified, a reasonable assessment of the economic cost or benefit of the proposal can be addressed. This is specifically reserved by the Commission whereby its decision to reclassify an aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow rule making procedures and be based on consideration of economic factors. This result obtains whether the affected party is a small business or some other entity. In reaching the conclusion that the economic costs or benefits of the proposed rules, apart from the cost of mapping, do not at this stage have a direct or quantifiable impact, I have not overlooked the "announcement effect" that is occasioned by the announcement of a governmental agency to regulate an activity. Such announcement certainly has a chilling effect on the community that may reasonably be impacted. The economic impact is, however, speculative or not quantifiable in the instant case. Further, the proof does not demonstrate any incorrectness or unfairness in the proposed adoption of the rules occasioned by the EIS prepared in this case.
The Issue Whether application 23181 for a consumptive use water permit should be granted, pursuant to Chapter 383, Florida Statutes. Prior to the hearing, 16 individuals in the Wabasso, Florida, community petitioned to intervene as parties in this proceeding. By Order, dated August 26, 1976, intervention was granted. Thereafter, counsel for the Wabasso Citizens Association, a private, unincorporated association that included the 16 prior intervenors, requested that intervention include all members of the association. There being no objection to the foregoing request, intervention was granted accordingly. The public hearing in this matter included 22 exhibits and the testimony of 21 witnesses, nine of whom were members of the public. Lists of the exhibits and public witnesses are attached hereto. On January 8, 1975, the Town of Indian River Shores, Florida (hereinafter "Town"), and Lost Tree Village Corporation, Indian Rivers Shores, Florida (hereinafter "Lost Tree"), filed application 23181 for a consumptive use water permit with the Central and Southern Florida Flood Control District (hereinafter "District"). The application requested a permit for the withdrawal of 393 acre feet per year of groundwater from two wells located on a parcel of land owned by Lost Tree at Wabasso, Florida. The requested use was for irrigation of two golf courses located on land owned by Lost Tree known as John's Island, a residential community located within the Town, and as an emergency public water supply for the Town. It was proposed that the water be transported by pipeline owned by Lost Tree from Wabasso to John's Island, a distance of several miles. Although the matter was set for public hearing to be held on February 4, 1975, an unfavorable staff report of the District, dated January 30, 1975, resulted in an indefinite postponement of the hearing. A hydrogeological report was prepared for Lost Tree by a consulting firm on February 12, 1976, and submitted by the applicant to the District. A subsequent staff report of the District was prepared on July 28, 1976. Thereafter, the matter was noticed for hearing to be held August 31, 1976. Pursuant to the request of intervenors, a continuance was granted until September 29, 1976. (Exhibits 5,6,7,8,19)
Findings Of Fact The Town is a municipality that was incorporated in 1953. It is located east of the Indian River on an island and extends from the north boundary of Vero Beach for over 4 miles along the Atlantic ocean. In 1969, Lost Tree commenced developing a 3,000-acre tract of land located within the Town as a residential community. Prior to the initiation of this project, there had been very little development in the Town. In order to attract residents to John's Island, two 36-hole golf courses were constructed on the property, known as the North and South Courses, covering approximately 180 acres. At the present time, John's Island comprises over 600 residences, consisting of single and multiple family units, ranging in price from $65,000 to $500,000. The Town has a population of about 1,200, with 65 percent residing at John's Island. The present assessed value of property located in the Town is about $160,000,000 of which almost $66,000,000 is attributable to property in John's Island. The private golf club at John's Island has approximately 500 members, including about 150 from Vero Beach. The golf courses are considered to be the "heart" and "life-blood" of the community (Testimony of Ecclestone, Miller; Exhibits 5,11,12). The water supply of the Town comes from the water system of the City of Vero Beach, pursuant to contract, via a 16" water main which crosses the Indian River and ends at the northern boundary of Vero Beach. There, it is tied into a 12" water main of the Town. The Town has a one million gallon capacity underground storage tank and a 100,000 gallon overhead tank. The 16" main is the only waterline that crosses the Indian River and, in the event of a rupture, the Town would be limited to its stored supplies (Testimony of Miller, Little, Exhibits 5,17). The John's Island golf courses require irrigation of approximately 70 acres. In the past, irrigation water has been obtained from a system of shallow wells on the property, treated sewage effluent from the surrounding community, and stormwater, all of which is discharged into two ponds located on the courses. Additionally, treated potable water is obtained from the City of Vero Beach through two two-inch water meters that were installed in 1975. Prior to that time, an undisclosed amount of city water was obtained for irrigation and other purposes through city meters installed on fire hydrants in the area. The use of city water was required in order to supplement the resources available on the John's Island property. During the period May, 1975, through August, 1976, the amount of water obtained from the City of Vero Beach that was used for golf course irrigation totaled 54,057,000 gallons, an average of some 110,000 gallons per day. At the present time there is no water problem, insofar as irrigation is concerned, on the South Course which obtains irrigation water from sewage effluent and a number of shallow wells. However, test samplings over the years have shown a gradual increase in the amount of chlorides in the water and it is questionable whether such water will continue to be suitable for irrigation in the foreseeable future. Recent tests show the chloride content of the water at 450 ppm. The type of Bermuda grass on the golf courses can grow satisfactorily with water containing not more than 1,000 ppm. City water is used only on the North Course. The water obtained from the shallow wells in that area is highly saline in content. A recent water test showed a chloride content of 3,800 ppm. Additionally, immediately before an eight inch rainfall which lowered the chloride content to the foregoing figure, the greens on the North Course tested at 6,300 ppm in chloride content (Testimony of Luke, Little, Exhibits 6,7). During periods of drought, the City of Vero Beach has requested John's Island and other water users to either curtail or stop the use of city water for non-domestic purposes. Such requests have been received approximately six times during the past year. In April, 1976, the city water used for golf course irrigation at John's Island was shut off for a period of eight days as a result of a request from officials of Vero Beach. If insufficient irrigation water is not received for a period of 10 days to two weeks, it is extremely probable that a golf course would have to be replanted at an approximate cost of $60,000.00 to $80,000.00 and would require a period of six months for suitable growth. Both the Town and John's Island always cooperated fully with the requests of Vero Beach to curtail water use (Testimony of Luke, Miller, Little, Exhibit 17). At the time irrigation water sources were being explored at John's Island, a test well was drilled to a depth of 2020 feet into the Floridan aquifer underlying the property, but an inadequate quantity of water was developed. Lost Tree owns some 25 acres of land at Winter Beach, Florida, which is located west of John's Island across the Indian River. Although test wells there produced satisfactory water, it was not feasible to use this source due to prohibitions against excavation for such purposes in the Indian River. Due primarily to economic considerations of the high cost of using treated city water for golf course irrigation, and the inconvenience and possible hazards of water interruptions from that source, Lost Tree decided to supplement its resources from water withdrawn from wells to be located on a 4.869 acre tract of land it purchased in Wabasso. Although a deep well was considered at that site, state agencies advised that the Floridan aquifer was overloaded in that area to a degree of 200 percent. Accordingly, in 1973, two ninety-foot deep wells were constructed on the site approximately 500 feet apart into the underlying shallow aquifer. Pump tests showed that the chloride content was within satisfactory limits. Thereafter, Lost Tree in its own name and that of The Town, obtained necessary rights-of-way and permits for the placement of a system of pipes for transportation of water from the Wabasso wells to John's Island. These consisted of a 16" water line from the Wabasso site east over a newly constructed bridge and several existing bridges to Highway A1A where the size of the line south to John's Island was decreased to twelve inches. An agreement was entered into between Lost Tree and the Town on December 19, 1974 whereby the former agreed to supply emergency needs of the Town from water obtained from the Wabasso wells. About that same time, the pipe system was completed and the present application filed with the District (Testimony of Lloyd, Ecclestone, Exhibits 2,6,9). The area immediately surrounding Lost Tree's land in Wabasso consists primarily of residences, groves, and trailer parks. The residents of the unincorporated Wabasso area depend solely upon the shallow aquifer for their domestic water needs since there are no utility services in the area. Grove irrigation normally is accomplished by deep wells to the Floridan aquifer. After the application herein was filed in January, 1975, numerous letters of objection to the proposed withdrawal were filed with the District by residents of the Wabasso community and from local organizations. These objections, for the most part, expressed apprehension that the applicants would be withdrawing far more water from the well field than their fair share based on the size of Lost Tree's land in Wabasso. The objectors also claimed that the requested withdrawal would have a serious detrimental effect on existing users. They further protested the concept of extracting potable water from one area and transporting it to another area for irrigation use on recreational facilities. The initial Staff Report of the District on January 30, 1975, took such objections into consideration and recommended denial of the application based on the unsuitability of the well field site. It found that withdrawal of the requested water for golf course irrigation was not a reasonable and beneficial use because it greatly exceeded the water budget for the site, harmed existing legitimate users in the area by creating drawdowns of several feet which would increase the possibility of potable water supply wells running dry, harming potential future legitimate users by lowering the water table and exporting the water that they might have utilized, and because it threatened to harm such users and the resource itself by "upconing" saline water from the bottom of the aquifer into the fresh water producing zone of the aquifer. Although the report stated that there would be no objection to permitting an allocation on the order of 7.5 acre feet per year, which was the equivalent to the water crop, it was not recommended because such an allocation would do little to meet the applicant's needs for irrigation water (Exhibit 6, Composite Exhibit 20). Recognizing the need for further studies to support its application, Lost Tree hired a firm of consulting groundwater geologists and hydrologists to conduct an investigation of potential sources of irrigation water for both the John's Island and the Wabasso sites. The study confirmed prior conclusions that it was not practicable or feasible to develop the necessary irrigation water from sources available at John's Island. As to the Wabasso area, the report found that the shallow aquifer was not being fully utilized and that extraction of the proposed quantity of water would not exceed the capacity of the aquifer to provide it. It also determined that the presence of a continuous layer of impermeable clay within the Hawthorn formation effectively separates the Floridan from the shallow aquifer. No interference in the water levels of the Floridan aquifer should occur nor is it likely there would be salt water intrusion into the shallow aquifer. However, based on the formulation of a "mathematical model," it was predicted that the proposed withdrawal could adversely affect existing shallow wells within a few hundred feet of the applicant's well field by "drawdown" which could lessen the pumping ability of centrifugal pumps. Nearby existing wells, such as those located in a trailer park immediately west of Lost Tree's well field, could lose suction in pumping and thereby owners might experience delay in extracting water from the wells (Testimony of Amy, Exhibits 4, 8). Although one Wabasso resident who owns property near Lost Tree's wells has experienced a decrease in pressure in her well and poor quality water, and another nearby resident's well went dry, there is no clear evidence that Lost Tree's drilling of its two wells and consequent testing thereof caused these problems. Testimony of other Wabasso residents expressed their apprehension as to possible salt water intrusion and unavailability of water in the shallow aquifer if the requested withdrawal is approved. Other residents and public witnesses challenged the fairness of permitting one land owner to deplete local water supplies by withdrawals for transport to another area for recreational purposes (Testimony of Chesser, McPherson R., Pangburn R., Jackson, Mrs. S.B., Kale, Stout, Wintermute, Pangburn, K., Bidlingmayer, Willey, Gertzen). The District Staff Report, dated July 28, 1976, as supplemented by an addendum, dated August 30, 1976, reviewed the hydrogeological study submitted by the applicants and concluded that withdrawal of a specified amount of water from Lost Tree's Wabasso wells would represent a reasonable and beneficial use of the resource that did not appear to harm either the resource or existing users. It calculated the "crop requirement" for the golf courses on the basis of 135 acres. Testimony at the hearing established that the area required to be irrigated was only 70 acres. Consequently, the report's recommendation as to the annual water allocation for golf course irrigation was scaled down accordingly. Recommendations as to daily withdrawals were based upon the maximum billing by the City of Vero Beach for a 22-day period in January and February, 1975, plus a 20 percent allowance to provide a reasonable degree of operational flexibility. The conclusion of the staff that the withdrawal would not harm existing users is questionable in the light of the applicant's own hydrogeological study and testimony of its experts (Testimony of Winter, Exhibits 6,7,22). The Staff Report recommended that certain conditions be imposed upon any issuance of the requested permit. The following findings are made as to the reasonableness of such proposed conditions: Annual allocation of no more than 51.044 million gallons. FINDING: Reasonable. This permit shall expire 5 years after permit issuance. FINDING: Reasonable. The use may require reevaluation based upon developing needs of the area of withdrawal for higher priority uses of the resource. The total maximum monthly withdrawal from the two wells in Wabasso shall not exceed 6.931 million gallons. FINDING: Reasonable. The total daily withdrawal from the two wells in Wabasso shall not exceed 378,000 gallons. FINDING: Reasonable. Daily pumpage on a monthly basis shall be reported to the District during the following month. This data must be obtained through the use of an in line totalizing meter or meters at the well field. FINDING: Reasonable. Prior to the initiation of any pumping from the wells in Wabasso the permittee must survey all existing wells (with the owners' permission) located within 800 feet of each of these wells. Should it be determined that the permittee's pumping as recommended may adversely affect an existing well the permittee is to be held responsible for making timely corrective measures as deemed necessary at no expense to the owner, in order to preserve the water supply capability of that facility. A complete and detailed report of the survey and corrective measures taken by the permittee shall be submitted to the District. The District will then issue a notice authorizing the permittee to begin pumping as required. FINDING: Unreasonable. Although it is conceded by the applicants that adverse effects upon nearby wells may well occur, attempts to make determinations as to actual effects prior to full operation of Lost Tree's wells would only be speculative in nature. It is noteworthy in this regard that upon issuance of a temporary authorization to Lost Tree to withdraw water commencing in August, 1976, a similar precondition was imposed with a report of a survey and corrective measures taken to be submitted to the District prior to authorization to begin pumping. A cursory survey was performed by a representative of Lost Tree that consisted merely of attempting to locate surrounding wells by off-premises observation. No attempt was made to contact well owners or to obtain information as to the types of pumps on the wells. Such a survey is patently inadequate for the purposes desired by the District and it is considered impracticable and onerous to saddle the applicant with the burden of such a condition. Although withdrawals of water under the temporary permit commenced on September 18, 1976, and continued thereafter, there is no evidence that any complaints were registered by adjacent well owners as a result of the withdrawals (Testimony of Pearson, Exhibits 13, 14). For a period of 18 months after the first full week of operation in which no substantive complaints of adverse impact are received by the District, the permittee must assume full responsibility for taking the appropriate corrective to rectify any adverse impact their withdrawals create on any existing users within the area influenced by their withdrawal. Upon receiving a substantive complaint of adverse impact upon an existing user, the Executive Director of the District will issue a notice prohibiting any further withdrawals from the wells in Wabasso until corrective measures are taken by the permittee at no expense to the existing user, or until the permittee proves that their withdrawal is not the cause of the problem. The Executive Director of the District will issue a notice to resume withdrawals when the District has been satisfied that the situation is remedied. FINDING: Reasonable in part. The condition should be modified to extend the period of the permittee's responsibility for corrective action as to adverse impact on existing users to the entire life of the permit rather than for a period of only 18 months. Further, the District's prohibition of withdrawals after the receipt of a complaint is arbitrary and inconsistent with the method of administrative enforcement procedures as specified in Section 373.119(1), Florida Statutes. To help define the actual impact of the permittee's withdrawal a total of at least seven observation wells shall be installed. The observation wells shall be located between the permittee's wells and Indian River, two shall be located to the west and the remaining two shall be located either to the north or south of the permittee's wells. The locations and depths of these wells shall halve District concurrence. A continuous water level recording device shall be installed on one off these wells. FINDING: Reasonable. Although the installation and monitoring of a number of observation wells imposes a financial burden on the applicants, it is considered a proper requirement to assist in determining the impact of any withdrawal. The time for installation and specifications thereof should be set forth in any permit issued. Hydrographs from the recording device on one of the observation wells and from weekly hand measured water levels on the remaining observation wells shall be submitted to the District on a monthly basis. This data shall be submitted in the month following the period of record. All water level data shall be measured and recorded to the nearest hundredth of a foot and referenced to mean sea level. FINDING: Reasonable. By acceptance of this permit the permittee acknowledges that this permit confers no prior right to the permittee for the use of water in the amount allocated and for the purpose stated. FINDING: Unreasonable. The condition is ambiguous and involves legal aspects that are not proper for determination at this time. Any future application involving the use of the withdrawal facilities permitted herein, shall be considered as an application for a new use and it shall be reviewed accordingly. FINDING: Unreasonable. See comment in I above. All existing Floridan wells located on the applicant's properties must be abandoned in accordance with the current applicable standards of the Department of Environmental Regulation. Abandonment procedures must be carried out within 6 months of the date of issuance of this permit. FINDING: Unreasonable. The abandonment of existing Floridan wells involves subject matter not embraced within the application. An officer of the Lost Tree Village Corporation shall submit with each report required by the District a sworn and acknowledged affidavit that the report reflects the actual measurements or readings taken. FINDING: Reasonable. The Permittee shall obtain a water sample from a pumping well at the Wabasso well field site once a month, within five days of the end of the month. This sample shall be analyzed for chloride content, and the results reported to the District within 14 calendar days after collection. Should the District determine that a significant change has occurred in the chloride content of the water being withdrawn from the Wabasso well field, the District shall initiate a new review of the application. FINDING: Reasonable. Upon installation of the observation wells, a water sample shall be obtained from these wells and analyzed for the following parameters: Chloride Total Dissolved Solids Conductivity Sulfate Calcium Magnesium Sodium Bicarbonate This analysis shall be submitted to the District within 14 days after collection. During the last five days of the months of May and November of each year, during the duration of this permit, the permittee shall obtain one water sample from each of the installed observation wells. These samples shall be analyzed for Chloride content, and the results reported to the District within 14 days after collection. FINDING: Reasonable. If the permittee can demonstrate to the satisfaction of the District that the groundwater withdrawn by the south golf course well point system is no longer suitable for the irrigation of the golf course, the annual allocation shall be increased to 82.942 million gallons. FINDING: Unreasonable. Future needs should be the subject of modification of permit terms at an appropriate time, pursuant to section 373.239, F.S. An emergency authorization was issued to the applicants by the governing board of the District on August 30, 1976. This authorization contains certain special conditions including a requirement to conduct and submit a preauthorization survey and report concerning existing wells located within 800 feet of the applicant's wells. In addition, a condition of the authorization was that no withdrawals shall be made unless the City of Vero Beach had ordered the applicant to stop the use of water from its system for golf course irrigation. The evidence shows that neither of these conditions was met by the applicant, but yet withdrawals were made during the month of September, 1976 without District authorization (Testimony of Winter, Rearson, Exhibit 13). The applicant's disregard of these requirements indicates the need for a further special condition if a permit is granted, to ensure that adjacent land owners are protected in the event of adverse effects upon their water supply. To accomplish that, it is found that the following additional condition is reasonable and necessary: P. The Board shall require the applicant to furnish a bond in an appropriate amount, as authorized by Rule 16K-1.061, F.A.C. It is found that insufficient evidence has been presented to determine the merits of the request of the Town of Indian River Shores for an emergency water supply from the Wabasso wells.
Recommendation That a consumptive water use permit, with conditions as specified herein, be issued to applicant Lost Tree Village Corporation for the irrigation of its two golf courses at John's Island. DONE and ENTERED this 9th day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1976. COPIES FURNISHED: John H. Wheeler, Esquire Post Office Box V West Palm Beach, Florida Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 William T. McCluan, Esquire 65 East Nasa Boulevard Post Office Box 459 Melbourne, Florida 32901 =================================================================
The Issue The issues in this case essentially are whether the Respondent, the Department of Environmental Regulation (DER), should reimburse Anthony F. Kopp, Owner, La Casa Del Sol, for the difference between the cost to him of the DER's remedy for the EDB contamination of the drinking water supply at La Casa Del Sol and the remedy that is least costly to the Petitioner, together with the cost of a new irrigation system, engineering and attorney fees, and other incidental costs to the Petitioner.
Findings Of Fact The Petitioner, Anthony F. Kopp, is the owner of La Casa Del Sol (La Casa), a 40-acre development at 1255 U.S. Highway 27 North, Davenport, Florida. La Casa is divided into 309 mobile home lots, a clubhouse and five acres of common green space. In January, 1987, the Petitioner received a permit for construction of a water supply system for both drinking water and irrigation needs at La Casa. The construction permit was granted with the proviso that, when La Casa's population reached 350, a second backup drinking water well, six inches in diameter at 410 feet, with a casing to 366 feet, and an auxiliary power source would have to be installed. It would cost La Casa approximately $65,000 to install the backup well and auxiliary power source. La Casa did not reach a population of 350 until January, 1991. The St. Johns River Water Management District permitted the construction of the backup well, but the well never was constructed, and the construction permit now has expired. The auxiliary power source also was not installed. The main water supply system for La Casa was installed during the summer of 1987. It included a well and a system of lines for carrying water to each of the 309 lots. It also included hose bibs (faucets) at each lot so that the water also could be used for irrigation at each lot. The system also supplied water for irrigation of the common green space. Although all of the lots at La Casa were connected to the water supply system in the manner described, not all the lots had homes on them. During the summer of 1989, only about 175 of the lots had homes on them; by January, 1991, 198 lots had homes on them. Although not all of the lots were occupied, the entire water supply system was permitted, and no additional permits were required to provide water to the lots. However, when La Casa's population reached 350, the backup well and auxiliary power source would have to be installed under the permit conditions. In about May, 1988, DER tests showed that the La Casa water supply system was contaminated with ethylene dibromide (EDB) at levels in excess of the maximum allowable for drinking water. In October, 1988, the Petitioner completed and filed a Grant Application for EDB Clean-Up Funds. As part of the application, the Petitioner agreed that DER could: arrange for the purchase and installation of appropriate filters and inhibitors; provide a new well; or arrange for the connection of [the Petitioner's] well to an existing public supply system, whichever is more cost-effective as determined by the Department of Environmental Regulation. DER contracted with Continental Water Systems to provide a temporary carbon filter system for La Casa's water supply system to remove the EDB and supply uncontaminated drinking water to the development, pending a permanent solution to the EDB contamination. The temporary filter system was designed to provide 100 gallons per minute of water, which should have been adequate for drinking water needs at La Casa. However, water pressure problems arose due to algal growth and the use of the system for irrigation purposes in addition to the drinking water purposes for which it was designed. DER is a member of the Ground Water Task Force, which met biweekly or monthly to discuss, among other things, potable wells contaminated with EDB. Other member agencies are the Department of Heath and Rehabilitative Services, the Department of Agriculture and Consumer Services, the Department of Transportation and the Department of Community Affairs. The Task Force discussed the La Casa contamination problem and agreed that the possibility of having La Casa connected to an existing water supply should be explored. DER began negotiating both with Polk County and with Haines City for a water line connection. Connection with the Polk County line would have been more expensive, and Polk County was not particularly interested in extending its line. Negotiations continued with Haines City. Negotiations with Haines City progressed to the point that DER was able to present for consideration by the Task Force cost figures for a permanent filter system at La Casa, with ten years of projected cost of operation and maintenance, as compared to the cost of extending the Haines City line. The Task Force agreed with DER that extending the Haines City line north to La Casa and connecting La Casa to it was the most cost-effective use of state funds to remedy the EDB problem at La Casa, particularly in view of other EDB-related drinking water supply problems in the area and anticipated future drinking water supply problems in the area. The Petitioner was not invited to participate in the negotiations with Polk County and Haines City and did not participate in them. Nor was the Petitioner invited to participate in either the DER or the Task Force decision- making process, and the Petitioner did not participate in those processes, either. However, the Petitioner, through his engineering consultant, was made aware in early 1989 that DER was exploring options to have La Casa connected to an existing water supply. DER paid approximately $400,000 for the Haines City water line extension and La Casa connection. This included $90,000 for Haines City impact fees to cover the 175 then existing mobile homes at La Casa (DER actually paid $450 per unit for 200 units), as well as the plumbing contractor fees for connecting La Casa to the extended city water line. It also includes the cost of installing a water meter at La Casa. The ten-year cost to the DER to solve just the La Casa drinking water problem using an EDB filter system would have been less than the cost to the DER of extending the Haines City line and connecting La Casa to it. But the evidence is clear that, in the long run, and taking into consideration other EDB-related drinking water supply problems in the area, and anticipated future drinking water supply problems in the area, the most cost-effective use of state funds to remedy the problem was to extend the Haines City line and connect La Casa to it. (Even the Petitioner's expert witness agreed that the Haines City extension and connection was the most cost-effective use of state funds to remedy the area's EDB problem.) DER advised the Petitioner of its agreement with Haines City in approximately May or June, 1989. By letter dated July 27, 1989, DER explained to the Petitioner the details of the agreement, specifically what DER would pay and what DER would not pay. By the fall of 1989, the Petitioner knew that work was beginning. At the time, the extension of the Haines City line and connection to La Casa was projected for completion in January, 1990, but there were delays, and the city water supply was not ready to be connected to La Casa until August, 1990. By this time, a dispute had arisen between the Petitioner and DER as to the cost to the Petitioner of connecting to the city water, and actual connection was further delayed. Finally, by letter dated October 11, 1990, DER gave the Petitioner an ultimatum: either be connected to the city water supply; or forfeit any state contribution to the cost of remedying the EDB contamination of the Petitioner's water supply. Faced with the prospect of having to open the winter peak season without any drinking water, the Petitioner agreed, under protest, to be connected to the city water supply, and initiated formal administrative proceedings to challenge DER's intended decision to limit the extent to which the DER would cover the Petitioner's costs. There was evidence that the plumbing contractor hired by DER may have caused damage to the landscaping and one mobile home that has not yet been repaired. However, DER acknowledged its responsibility for the damage and intends to have the plumbing contractor repair the damage. There also was evidence that the Petitioner received a bill from Haines City for the installation of a water meter at La Casa. But the evidence also was that DER may already have paid the bill. In any event, DER acknowledges its responsibility for the cost of the water meter as part of the cost of connecting La Casa to the extended city water line. Although DER had the Haines City water line extended in response to the Petitioner's Grant Application for EDB Clean-Up Funds, two commercial properties south of La Casa were connected because of EDB contamination, and the line also was extended north of La Casa in preparation to address anticipated future EDB contamination problems. Under the DER's response to the Petitioner's Grant Application, each additional mobile home unit over 200 connected to the city water supply will require the payment of a $450 impact fee. In addition, Haines City will charge monthly water fees of $1.80 1/ per 1000 gallons for the use of water at La Casa, with a $1,000 minimum charge per month. 2/ Based on current occupancy of 200 lots, the Petitioner estimates water fees of $42,000 per year, figured at approximately $5,000 per month for six peak months (based on a recent peak season monthly bill) and $2,000 per month for six off-peak months. However, it is not clear whether some of that estimated usage includes irrigation. If, in order to save gallonage fees, the Petitioner puts in a separate irrigation system supplied by its well, it will have to put in a separate distribution system since the current system is being used to bring city water to the lots. This would cost approximately $90,000. The Petitioner has paid approximately $2,100 in engineering fees to assess the problem with the temporary filter and to propose solutions, to estimate the cost of installing a separate irrigation system, and to estimate the cost to the Petitioner of connecting to the Haines City water supply. There was no evidence as to the reasonableness of those fees. The Petitioner also has paid approximately $4,500 in attorney fees to negotiate with the DER for payment of a larger portion of the Petitioner's cost of connecting to the Haines City water supply. There was no evidence as to the reasonableness of the attorney fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing the Amended Petition for Formal Hearing in this case. RECOMMENDED this 14th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 14th day of March, 1991.
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
