Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for consumptive use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
Findings Of Fact S. A. Williams Corporation (Williams) is a Florida corporation which has its principal place of business in Florida, has a net worth of less than two million dollars, has fewer than 25 employees, and was the prevailing party in the initial proceedings. Williams has operated a construction and demolition landfill in Hernando County since prior to the adoption of zoning ordinances by the county, and its use of the land for this purpose was grandfathered. Subsequently, William sought to comply with certain conditions established by the County for expanding the landfill site. These improvements necessitated construction of a basin to retain surface water. On April 6, 1993, William applied for a surface water drainage permit from the Southwest Water Management District. On June 16, 1993, the District gave notice of its intent to issue the surface water drainage permit to Williams. On May 26, 1993, while Williams' application was pending with the Water Management District, the County revoked the zoning of Williams to operate a construction and demolition landfill site. Williams sought and obtained an injunction against the County to prevent it from revoking its zoning, and the County appealed the Circuit Court's order enjoining the revocation of the zoning. The Hernando County Commission was advised by their attorney on May 10, 1993, that the County might desire to challenge the issuance of permits by the Water Management District or the Department of Environmental Regulation to Williams to prevent Williams from proceeding with its operation during the appeal of the injunction. At a meeting on June 24, 1993, before the County challenged issuance of the permit, the Water Management District staff advised the County Attorney and a member of the County Commission, who were attending the presentation in their official capacity, that there would be no adverse drainage impacts to any property owned by the County, its rights-of-way, or any property of any citizen of the county because the drainage would be retained on Williams' property by a close basin system large enough to retain surface water drainage on the property during a 100 year storm. Subsequent to this meeting and prior to filing its petition challenging issuance of the permit, the County did not bring to the attention of the Water Management District any concerns to be resolved between the District, Williams, and the County over adverse drainage impacts to County property or rights-of-way. 7 On June 30, 1993, Hernando County filed a petition in the original proceeding challenging the issuance by Southwest Water Management District to Williams of a surface water drainage permit. That petition alleged two grounds for standing: (1) that the County was substantially affected because of adverse impacts to county property and the rights-of-way to county roads, and (2) that the County had standing to challenge the issuance of the permit under its general police powers. The County Engineer was not asked by the County Attorney to review the drainage impacts of the surface water drainage permit prior to filing the challenge, and did not review the District's file until after his first deposition on October 22, 1993. After reviewing the information, to include a new survey of the berm contours, furnished to the Water Management District by Williams, the County Engineer determined that there were no adverse drainage impacts off site. The County Engineer's opinion that there were no adverse impacts to County property was known by the County Attorney prior to the formal hearing in Case Number 93-4212 on November 16, 1993. At the formal hearing on November 16, 1993, in Case Number 93-4212, Williams moved to dismiss the petition filed by Hernando County for lack of standing on the basis that the County was not substantially effected by the Water Management District's decision to issue a surface water drainage permit to Williams. The County receded from its allegation of damage to County property and rights-of-way at the commencement of the hearing, but asserted standing on the basis of its general police powers. The County specifically denied at the formal hearing acting in a representative capacity in the manner of an association in behalf of the county's citizens. After hearing the argument of counsel and being fully advised in the premises, the undersigned hearing officer recommended that the County's petition be dismissed. At the conclusion of the hearing, Williams moved for the award of attorney's fees and expenses from the County after argument on the motion to dismiss the County's petition. Thereafter, Williams filed a written motion for the award of attorney fees and expenses. The Hearing Officer retained jurisdiction to consider the Motion for Attorney Fees and Expenses when the recommended order was entered. The Water Management District adopted the Recommended Order in its Final Order dated December 20, 1993, and the County appealed the District's Final Order which was affirmed per curiam without opinion in Hernando County v. Southwest Florida Water Management District, 647 So. 2d 124, (Fla. 5th DCA 1994). The instant case was established to consider William's motion which is treated as a collateral fact finding proceeding. The style of the original case was retained to prevent confusion. An evidentiary hearing on the motion for attorney's fees was held on May 10, 1995 which revealed the following facts. During the work-up period prior to notice of intent to issue the permit, the county's engineer and environmental specialist did not raise issues regarding drainage, contours, wetlands, and wildlife. (Tx-220). Although the County Attorney and one of its commissioners had been advised by the District that there would be no impact to County property or rights-of-way, the County Engineer was not asked to investigate whether the drainage from the proposed project would remain on the site as stated in the application and as concluded by the staff of the Water Management District prior to the County challenging the issuance of the permit. (Tx-198,199) The County Engineer looked at the Water Management District's file on the issuance of the permit only after the County had filed its challenge. (Tx-209). The County Engineer had expressed concerns to the District staff about suspected changes in the topography on the site. (Tx-208). When the Water Management District was made aware of the County engineer's concerns, a new survey was conducted which resolved the County engineer's concerns about changes in topography on the site, and revealed that the tops of the berms were as high or higher than represented in the application. The results of this new survey was shared with County Engineer prior to the original hearing. (Tx-208,211-219). The County's environmental specialist did not review the complete file on the Williams' permit application until within two weeks of the original formal hearing, well after the challenge was filed. (Tx-161). The environmental specialist had no basis to question the validity of the number of acres of wetlands stated in the second permit. (Tx-176). The environmental specialist did not have any personal knowledge regarding the flora or fauna on the site because she had never been on the site, and her information was based solely on material provided to her by individuals living in the vicinity of the site. (Tx-176,180-181). She did not have authority to enter on the site because the County had no enforcement authority over endangered species. When the county's concerns about endangered species on the site were voiced, an on site inspection was conducted by the District. The District staff found no endangered species, or evidence of endangered species, or persons who had seen them on the site. The District staff's findings were shared with the County prior to the original hearing. (Tx-220.) Williams incurred attorney fees and expenses responding to the challenge of the County to issuance of the surface water drainage permit. The expenses incurred by Williams were primarily in response to the County's allegations of adverse impacts to County property. However, it is impossible to reasonably separate the expenses incurred by Williams responding to the allegations of off-site impacts from those related to standing based upon general police power. The County's assertion of general regulatory authority was primarily a legal argument which was addressed by the District's staff. Williams sought no fees for the appeal which was litigated principally by the District and County. By agreement of the parties the evidence on the amount of attorney fees and rate were submitted by affidavit without agreement regarding the facts asserted in the affidavits. The rate charged by counsel for Williams of $195/hour was a reasonable rate for the type of service provided in the geographic area in which it was provided considering the skill and experience of counsel. The number of hours billed through preparation of the post hearing briefs in the original formal hearing in this case, 160.25 hours, was not excessive given the number of depositions taken, the motions hearings which were held, and the legal and factual issues raised. The Williams' affidavits of attorney's fees and expenses are as follows: Attorney fees thru original hearing: $31,248.75 Estimate of costs related to preparation and service of Motion for Attorneys Fees and Expenses: $ 1,560.00 Teleconference charges on motion to compel: $ 127.73 Outside copying expense: $ 8.73 Expert Witness fee: $ 1,277.90 Court Reporter fees for depositions & transcripts: $ 1,692.45 Expert fees on Motion for Attorney Fee and expenses: $ 788.00 24. The attorney's fees, expert witness fees, and costs incurred by Williams in the hearing on attorney fees May 10, 1995 of $3,894.81 are reasonable. Williams incurred an expense of $1,019.00 for publication of the transcript in the almost seven hour hearing.
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500043 requested water from one (1) well. The center of withdrawal will be located at Latitude 27 degrees 40' 38" North, Longitude 82 degrees 29' 31" West in Hillsborough County. Said withdrawal is for disposal off-site. This application is for an existing use. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on May 14 and May 21, 1975 pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application, map of the premises, legal description, receipts of certified mail, copy of the Notice, and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The witness for Permittee was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes with the exception as enumerated in No. 7. Upon request of the Hearing Officer a Joint Stipulation was filed in which it was agreed that the following conditions to the permit should be attached: "1. That applicant, Carol A. Ranallo, construct two observation wells on the south side of the pit mutually agreeable locations by inserting six (6) inch casings and screens to the depth of at least fifty (50) feet. The casings to be grouted in the bore hole from the bottom of the casing to the top of the ground level. The sites of the observation wells shall be selected by James Hudson of Delta Engineering Company and G. P. Szell within 15 days after issuance of the Consumptive Use Permit. 2. That the applicant or its agents or employees submit monthly readings to the staff of the Southwest Florida Water Management District of the chloride content of the water being withdrawn from the two wells and the level of the water table as read and determined under static conditions."
The Issue The issue to be determined is whether Respondent Land Trust #97-12 (“Land Trust”) is entitled to an Environmental Resource Permit (“ERP”) for its proposed project on Perico Island in Bradenton, Florida.
Findings Of Fact The Parties Petitioner Joseph McClash is a resident of Bradenton, Florida, who uses the waters in the vicinity of the project for fishing, crabbing, boating, and wildlife observation. Petitioner Manasota-88, Inc., is an active Florida nonprofit corporation for more than 20 years. Manasota-88 has approximately 530 members, most of whom (approximately 300) reside in Manatee County. The mission and goal of Manasota-88 includes the protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Petitioner FISH is an active Florida nonprofit corporation in existence since 1991. FISH owns real property in unincorporated Cortez in Manatee County and maintains a Manatee County mailing address. FISH has more than 190 members and more than 150 of them own property or reside in Manatee County. The mission and goal of FISH includes protection of the natural resources of Manatee County, including Anna Maria Sound and Perico Island. Intervenor Suncoast Waterkeeper, Inc., is an active Florida nonprofit corporation in existence since 2012. The mission of Suncoast Waterkeeper is “to protect and restore the Suncoast’s waterways through enforcement, fieldwork, advocacy, and environmental education for the benefit of the communities that rely upon coastal resources.” Suncoast Waterkeeper provided the names and addresses of 25 members residing in Manatee County. A substantial number of the members of Suncoast Waterkeeper use the area and waters near the proposed activity for nature-based activities, including nature observation, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Intervenor Sierra Club, Inc., is a national organization that is a California corporation registered as a foreign nonprofit corporation in Florida. Sierra Club has been permitted to conduct business in Florida since 1982. The mission of Sierra Club includes protection of the natural resources of Manatee County, which include Anna Maria Sound and Perico Island. Sierra Club provided the names and addresses of 26 members who live in Manatee County. A substantial number of the members of Sierra Club use the area and waters near the proposed project for nature-based activities, including observing native flora and fauna, fishing, kayaking, wading, and boating along the natural shorelines of Anna Maria Sound and Perico Island. Respondent Land Trust is the applicant for the challenged ERP and owns the property on which the proposed project would be constructed. Respondent District is an independent special district of the State of Florida created, granted powers, and assigned duties under chapter 373, Florida Statutes, including the regulation of activities in surface waters. The proposed project is within the boundaries of the District. The Project Site The project site is 3.46 acres of a 40.36-acre parcel owned by Land Trust. The parcel includes uplands, wetlands, and submerged lands, on or seaward of Perico Island, next to Anna Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound is an Outstanding Florida Water. The project site is adjacent to a large multi-family residential development called Harbour Isles, which is currently under construction. Access to the Land Trust property is gained through this development. The Land Trust parcel contains approximately seven acres of high quality mangroves along the shoreline of Anna Maria Sound. They are mostly black and red mangroves, with some white mangroves. The mangroves on the project site amount to a total of 1.9 acres. Mangroves have high biological productivity and are important to estuarine food webs. Mangroves provide nesting, roosting, foraging, and nursery functions for many species of wildlife. Mangroves also provide a buffer from storm surge and help to stabilize shorelines. Wildlife species found on the project site include ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs, marsh rabbits, raccoons, mangrove bees, and a variety of fish. No endangered species have been observed on the project site, but mangroves are used by a number of listed species. The Proposed Project The proposed project is to construct a retaining wall, place fill behind the wall to create buildable lots for four single-family homes, construct an access driveway, and install a stormwater management facility. The stormwater management facility is a “Stormtech” system, which is an underground system usually used in situations where there is insufficient area to accommodate a stormwater pond. Riprap would be placed on the waterward side of the retaining wall. The retaining wall would be more than 35 feet landward of the mean high water line in most areas. Petitioners contend the proposed retaining wall is a vertical seawall, which is not allowed in an estuary pursuant to section 373.414(5). “Vertical seawall” is defined in section 2.0(a)(111), Volume I, of the Environmental Resource Permit Applicant’s Handbook (“Applicants Handbook”) as a seawall which is steeper than 75 degrees to the horizontal. It further states, “A seawall with sloping riprap covering the waterward face to the mean high water line shall not be considered a vertical seawall.” The retaining wall is vertical, but it would have riprap covering its waterward face and installed at a slope of 70 degrees. The retaining wall is not a vertical seawall under the District’s definition. Stormwater Management Stormwater in excess of the Stormtech system’s design capacity would discharge into Anna Maria Sound. Because Anna Maria Sound is an Outstanding Florida Water, District design criteria require that an additional 50 percent of treatment volume be provided. The Stormtech system meets the District’s design criteria for managing water quality and water quantity. Projects which meet the District’s design criteria are presumed to provide reasonable assurance of compliance with state water quality standards. Petitioners’ evidence was not sufficient to rebut this presumption. Petitioners contend the District waiver of water quality certification for the proposed project means that Land Trust was not required to meet water quality standards. However, that was a misunderstanding of the certification process. All state water quality criteria are applicable. Petitioners contend water quality monitoring should be imposed for this project. However, section 4.7 of the Applicant’s Handbook, Volume II, provides that if the applicant meets the District’s design criteria, water quality monitoring is not required. Petitioners failed to prove the proposed stormwater management system cannot be constructed, operated, or maintained in compliance with applicable criteria. Wetland Impacts In order to create buildable lots, 1.05 acres of the 1.9 acres of mangroves on the project site would be removed and replaced with fill. A swath of mangroves approximately 40 feet wide would remain waterward of the retaining wall. The proposed direct and secondary impacts to the functions provided by wetlands were evaluated using the Uniform Mitigation Assessment Method (“UMAM”) as required by Florida Administrative Code Chapter 62-345. UMAM is used to quantify the loss of functions performed by wetlands considering: current condition, hydrologic connection, uniqueness, location, fish and wildlife utilization, time lag, and mitigation risk. The District determined the filling of 1.05 acres of wetlands would result in a functional loss of 0.81 units and the secondary impacts resulting from installation of the retaining wall would result in a loss of 0.09 units for a total functional loss of 0.9 units. Petitioners contend the functional loss would be greater. Petitioners contend the wetland delineation performed by Land Trust and confirmed by the District did not extend as far landward as the hydric soils and, therefore, the total acreage of affected wetlands would be greater. However, Petitioners did not produce a wetland delineation for the project site, and their evidence was not sufficient to rebut Land Trust's prima facie evidence on this issue. Petitioners’ experts believe the secondary impacts caused by the proposed project would be greater than calculated, including fragmentation of the shoreline mangrove system, damage to the roots of mangroves near the retaining wall, and scouring effects caused by wave action associated with the retaining wall. Respondents assert that the analysis by Petitioners’ expert Jacqueline Cook relied on federal methodology and that “the science used in her analysis is not contained in the state or district rule criteria.” Reliance on science is always appropriate. However, Ms. Cook’s use of a federal impact assessment methodology creates doubt about whether her scoring is consistent with UMAM. Despite the unreliability of Ms. Cook’s UMAM score, it is found that Respondents’ UMAM score under-calculated secondary impacts due to scour and other effects of changed water movement that would be caused by the retaining wall. It was not explained how the loss of storm buffering and erosion prevention functions of wetlands are accounted for in the UMAM score. Elimination or Reduction of Impacts Section 10.2.1 of the Applicant’s Handbook, Volume I, states that in reviewing a project the District is to consider practicable design modifications to eliminate or reduce impacts to wetland functions. Section 10.2.1.1 explains: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification that is not technically capable of being completed, is not economically viable, or that adversely affects public safety through the endangerment of lives or property is not considered “practicable.” A proposed modification need not remove all economic value of the property in order to be considered not “practicable.” Conversely, a modification need not provide the highest and best use of the property to be “practicable.” In determining whether a proposed modification is practicable, consideration shall also be given to cost of the modification compared to the environmental benefit it achieves. Land Trust originally proposed constructing a surface water retention pond. The Stormtech stormwater management system would cause less wetland impact than a retention pond. Land Trust contends the use of a retaining wall reduces wetland impacts because, otherwise, more mangroves would have to be removed to account for the slope of the waterward side of the fill area. However, this proposition assumes the appropriateness of the size of the fill area. Land Trust also contends wetland impacts are reduced by using the adjacent development to access the proposed project site, rather than creating a new road. However, the evidence did not establish that Land Trust had a practicable and preferred alternative for access. Unlike the Stormtech system, the retaining wall and access driveway were not shown to be project modifications. The proposed project would cause fewer impacts to wetlands if the fill area was reduced in size, which was not shown to be impracticable. Reducing the size of the fill area would not cause the project to be significantly different in type or function. Land Trust did not demonstrate that it implemented reasonable design modifications to eliminate or reduce impacts to wetland functions. Mitigation Land Trust proposes to purchase credits from the Tampa Bay Mitigation Bank, which is 17 miles north of the proposed project site. The Tampa Bay Mitigation Bank is in the Tampa Bay Drainage Basin. The project site is in the South Coastal Drainage Basin. Pursuant to section 10.2.8 of the Applicant’s Handbook, Volume I, if an applicant mitigates adverse impacts within the same drainage basin, the agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters. However, if the applicant proposes to mitigate impacts in another drainage basin, factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” will be considered to determine whether the impacts are fully offset. The parties disputed whether there was connectivity between the waters near the project site and the waters at the Tampa Bay Mitigation Bank. The more persuasive evidence shows there is connectivity. There was also a dispute about the habitat range of affected species. The evidence establishes that the species found in the mangroves at the project site are also found at the mitigation bank. However, local fish and wildlife, and local biological productivity would be diminished by the proposed project. This diminution affects Petitioners’ substantial interests. The loss or reduction of storm buffering and erosion prevention functions performed by the mangroves at Perico Island cannot be mitigated for at the Tampa Bay Mitigation Bank. Cumulative impacts are unacceptable when the proposed activity, considered in conjunction with past, present, and future activities would result in a violation of state water quality standards, or significant adverse impacts to functions of wetlands or other surface waters. See § 10.2.8.1, Applicant’s Handbook, Vol. I. Section 10.2.8(b) provides that, in considering the cumulative impacts associated with a project, the District is to consider other activities which reasonably may be expected to be located within wetlands or other surface waters in the same drainage basin, based upon the local government’s comprehensive plan. Land Trust did not make a prima facie showing on this point. Land Trust could propose a similar project on another part of its property on Perico Island. Anyone owning property in the area which is designated for residential use under the City of Bradenton’s comprehensive plan and bounded by wetlands could apply to enlarge the buildable portion of the property by removing the wetlands and filling behind a retaining wall. When considering future wetland impacts in the basin which are likely to result from similar future activities, the cumulative impacts of the proposed project would result in significant adverse impacts to wetland functions in the area. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62- 330.302(1)(a), and as set forth in sections 10.2.3 through of the Applicant’s Handbook. Rule 62-330.302, which is identical to section 373.414, Florida Statutes, lists the following seven public interest balancing factors to be considered: Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and The current condition and relative value of functions being performed by areas affected by the proposed regulated activity. The Parties stipulated that the proposed project would not have an adverse impact on public health, navigation, historical resources, archeological resources, or social costs. Land Trust proposes to give $5,000 to the City of Palmetto for an informational kiosk at the City of Palmetto’s public boat ramp. A District employee testified that this contribution made the project clearly in the public interest. Reasonable assurances were not provided that the proposed project is clearly in the public interest because of the adverse cumulative effects on the conservation of fish and wildlife, fishing and recreational values, and marine productivity of Anna Maria Sound, an Outstanding Florida Water.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Southwest Florida Water Management District issue a final order that denies the Environmental Resource Permit. DONE AND ENTERED this 25th day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2015. COPIES FURNISHED: Christian Thomas Van Hise, Esquire Abel Band, Chartered Post Office Box 49948 Sarasota, Florida 34230-6948 (eServed) Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 (eServed) Douglas P. Manson, Esquire MansonBolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606 (eServed) Joseph McClash 711 89th Street Northwest Bradenton, Florida 34209 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Justin Bloom, Esquire Post Office Box 1028 Sarasota, Florida 34230 (eServed) Robert Beltram, P.E., Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011.
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
