The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2012.
Findings Of Fact The Parties and the Property. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat., Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures. The Porters' Civil Action Against Saddlebrook. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application. Saddlebrook's MSSW Permit Application. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete. SWFWMD's Review of Saddlebrook's Application. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application. Compliance With SWFWMD Permitting Criteria. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts. Water Quantity. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973. Flood Protection. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property. Water Quality. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards. Wetland Impacts. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements. Wiregrass' Petition. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief": The application, as submitted, contains insufficient storage to meet water quality criteria. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic] as required by the DISTRICT criteria. The application, as submitted, contains calculations based on erroneous hydraulic gradients. The application, as submitted, will result in storage volumes insufficient to meet water quality criteria as required by DISTRICT criteria. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further, the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition. Objections Raised by Wiregrass At The Hearing. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds: For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.) In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing. The 1973 Pre-Development Date. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels. Other Governmental Agencies' Requirements. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies." SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and 96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than 100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton 373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements: The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County: The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.) Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance. Annual Volume of Runoff. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301, as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.
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 granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report. RECOMMENDED this 31st day of March, 1992, 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 31st day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. 12.-13. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters. Accepted but subordinate and unnecessary. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it. 18.-20. Accepted but subordinate and unnecessary. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines. 26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant. 32.-34. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation. Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Respondents' Proposed Findings of Fact. The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Douglas P. Manson, Esquire Foley & Lardner 101 East Kennedy Boulevard Suite 3650 Tampa, Florida 33602 Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis East Randolph Drive Chicago, Illinois 60601 Enola T. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves East Kennedy Boulevard Suite 800 Post Office Box 3350 Tampa, Florida 33601-3350 Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether General Water Use Permit (WUP) Number 20012185.000 (Permit) meets the conditions for issuance as established in Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, and should be issued to Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc.
Findings Of Fact The Parties DCAP is not-for-profit corporation incorporated in the State of Florida. Behrens is the President of DCAP. See also Findings of Fact 63-77. Farmland Hydro is a Delaware Limited Partnership authorized to transact business in Florida, and is the owner of the property leased by Basso/Redland, which is the subject of this WUP. Frank T. Basso, Jr., is a third generation farmer, who operates as Redland Growers Exchange, and seeks a General WUP to authorize groundwater withdrawals for crop irrigation. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The Proposed Water Use An Application for a General WUP was submitted by Farmland Hydro and Basso, as co-applicants, and received by the District on April 11, 2001. After receipt of additional information, the Application was deemed complete on October 22, 2001. The Applicants seek a General WUP to authorize a new water use for the irrigation of 140 acres for the production of both Spring and Fall row crops, using a seepage-with-mulch irrigation system.1 Basso plans to grow tomatoes and/or peppers in the Spring, and squash and/or cucumbers in the Fall. Crop planting for both seasons will be phased-in over a one-month period. Water allocation quantities are calculated on a weekly phase-in basis of approximately 35 acres for each planting date. The total time that the parcel will be in use for farming, to include planting and harvesting for each crop, is approximately six months per year. The subject parcel is part of a 250-acre tract known as the Brushy Creek Tract and is located in Hardee County approximately two miles south of the town of Ona; approximately two miles south of the intersection of U.S. Highway 64 and County Road 663; and is within the Southern Water Use Caution Area (SWUCA). The subject parcel currently does not contain a water well. The Brushy Creek Tract is a larger parcel of approximately 1,230 acres leased from Farmland Hydro by Redland and also by Parker Farms for cattle grazing, farming, and hunting. The subject parcel is used for cattle grazing and is surrounded by land owned by Farmland Hydro and used for either cattle grazing or agricultural row crops. Farmland Hydro also operates an additional approximately 1,941 acres of property near the subject parcel, which is used for citrus groves. Farmland Hydro has consumptive WUPs for this property. The closest existing legal user to the proposed Basso well site is another well on the Farmland Hydro property. As is generally done with vegetable crop production in Florida, vegetable crops grown on the Farmland Hydro property are grown in rotation with pasture, and have been rotated in this manner for many years. Typically, farmers have farmed a piece of land for one, two or three years and then, to avoid the buildup of insects and diseases, have allowed the land to revert to pasture and have moved on to another field for crop production. The subject parcel for which the WUP is being sought will be similarly treated. Crop rotation is an important agricultural best management practice that is used to address pest management, soil conservation, and maximizing nutrients for obtaining favorable crop production. Soil conservation is important to Basso, notwithstanding that there is a response in the Application that no approved Soil Conservation Service plan exists for the operation included in the Application. If the WUP is issued and the subject parcel is placed into crop production, another parcel of land will be taken out of crop production by Basso, resulting in the discontinuation of another permitted well. As a result, the issuance of this WUP will not result in a "water use change." Determination of Reasonable Demand/Allocated Quantities In determining whether a proposed water use is reasonable-beneficial and in the public interest, the District calculates the appropriate permit quantities for the particular water use, which is a function of demonstrated need, or demand for water; efficiency of the water treatment and distribution systems; whether water is sold or transferred to other entities; whether acceptable water can be acquired from lower quality sources; and whether conservation practices are employed. District Basis of Review (BOR), page B3-1. The reasonable need for agricultural water use is generally composed of one or more demand components, depending upon the specific agricultural use. "Typically, the reasonable need for irrigation water uses is equal to the supplemental crop requirement divided by the system efficiency or the system design capacity, whichever is less." "The supplemental crop requirement is the amount of water needed for a particular crop beyond the amount of water provided by effective rainfall." The supplemental crop requirement is generally determined by using the Agricultural Water Use Calculation Program (AGMOD) Version 2.1, which is based on the modified Blaney-Criddle method. This program takes into account site specific information such as crop type, growing period, evapotranspiration rate, soil type, rainfall, irrigation method and number of irrigated areas. "In most cases, the supplemental irrigation requirement is determined for a 2 in 10-year drought condition." The AGMOD program determines an inch-application rate which, when applied to the number of acres to be irrigated, results in a calculation of total annual average and peak monthly quantities for the proposed water use. District BOR, pages B3-4 and 3-5. See also District Water Use Design Aids, pages C4-1 through C4-7. In determining the allocated quantities, or reasonable demand for water, the District seeks to avoid both over- allocating water and under-allocating water for the specific crop intended, to ensure that the permitted amount is sufficient for the "2 in 10-year drought condition." Consequently, the allocated quantities arrived at by District staff through use of the AGMOD methodology may be different from the quantities indicated on an applicant's initial application, which are generally estimated without benefit of an agricultural water use calculation program. The AGMOD program was used to calculate water use quantities for the proposed water use. The allocated quantities for Basso's proposed use are 454,000 gallons per day (gpd) on an annual average basis and 1,241,000 gpd, as a peak month quantity. No quantities were requested or allocated for crop protection. See Finding of Fact 52. Modeling for Simulated Impacts As part of the application review process, the District evaluates potential impacts to existing legal uses of water, the water resources and environmental features that may result from the proposed groundwater withdrawals. To assist in the review process, analytical and numerical models, which incorporate best available hydrogeologic parameters for the area being considered for a permit, are used to simulate drawdowns for the withdrawal of the proposed quantities. The results of these simulations are used in the evaluation of potential impacts to assess whether the application meets the conditions for issuance. The District undertook simulation modeling of the potential effects of the proposed water withdrawals to be authorized by the permit. The allocated quantities were entered into the MODFLOW 387 groundwater flow model, which is a three- layer model developed by the U.S. Geological Survey and is the generally accepted model for this purpose. Model layers were set up to represent the surficial, intermediate, and Upper Floridan aquifers. (The Applicants seek to pump water solely from the Upper Floridan Aquifer.) There are limitations to the model in that the model assumes a homogeneous isotropic aquifer, with no preferred flow direction. In actuality, there is variability in the geology of the area. Modeling is intended to serve as a screening tool for assessing localized impacts anticipated from a proposed water use and is based upon the best available information. As distance from the proposed withdrawal site increases, the reliability of the modeling decreases, due to the variability in the geology and other parameters or boundary conditions that can affect the model. Use of the MODFLOW groundwater model allows the District to look at potential impacts at the site, and in the proximity of the site, and assists the District in assessing possible cumulative impacts associated with a proposed use. To assist in assessing potential impacts from the proposed use, a Peak Month modeling simulation was undertaken by the District, which simulates the effect of pumping the proposed Peak Month withdrawal rate of 1,241,000 gpd for 90 consecutive days, with no recharge to the aquifer systems. The model essentially presents a worst case scenario that is a more severe prediction than what is actually likely to occur from the permitted use under normal conditions. Simulating the period of greatest demand on the hydrologic system is likely to provide maximum protection to existing legal water users and the water resources. The Peak Month simulation undertaken by the District predicts drawdowns in the potentiometric surface of the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site; less than 1.4 feet at the nearest property boundary (approximately 1,250 feet from the proposed withdrawal site); and less than 1.2 feet at the nearest existing legal user (a Farmland Hydro well approximately 3,500 feet from the proposed withdrawal site). These numbers did not raise a concern for District staff. ("Potentiometric surface" is "a surface defined by the level to which water rises in an open pipe that is constructed into or all the way through an artesian aquifer. This is measured in feet relative to NGVD or sea level. The level to which water rises inside this open pipe is a function of the pressures on the water in the artesian aquifer." District BOR, page B-xii.) The Peak Month simulation predicts drawdowns in the intermediate aquifer of approximately 0.9 feet at the proposed withdrawal site, and less than 0.9 feet at the property boundary, and at the nearest existing legal user. The Peak Month simulation predicts drawdowns in the water level of the surficial aquifer (water table) of approximately 0.01 feet or less at the proposed withdrawal site, property boundary and nearest existing legal user. Based upon the Peak Month simulations, the District reasonably determined that further cumulative impact modeling was not necessary in order to assess localized cumulative impacts resulting from the proposed use. To assess regional cumulative impacts, the District evaluated Regional Observation Monitoring Program (ROMP) data and found no significant trends in withdrawals in recent years, other than a slight decline attributed to the recent drought. Conditions of Issuance of the Proposed Permit In order to obtain a water use permit, an applicant must establish that the proposed use of water is a reasonable- beneficial use, will not interfere with any existing legal use of water, and is consistent with the public interest, by providing reasonable assurance, on both an individual and cumulative basis, that the water use meets the conditions for issuance as specified in Section 373.223(1), Florida Statutes, and Rule 40D-2.301, Florida Administrative Code. A permit must be obtained from the District prior to withdrawing water, where the withdrawal is from a well having an outside diameter of six inches or more at land surface, where the annual average withdrawal from all sources is 100,000 gpd or greater, or where the total combined withdrawal capacity from all sources is greater than or equal to 1 mgd. The proposed water use falls within these parameters. Rule 40D-2.041(1)(b) and (c), Florida Administrative Code. The quantities allocated for the proposed use have been determined by the District to be necessary to fulfill a certain reasonable demand, for the reasons specified herein. To assist in assessing impacts, the District utilizes a network of ROMP wells to obtain basic groundwater monitoring data over time and to help characterize the lithology, stratigraphy, aquifer depths, water levels and, in some cases, water quality for the various water resources. Data obtained from the ROMP and other wells is compiled to ascertain aquifer characteristics within the District and is also integrated into the District's modeling efforts pertaining to proposed water uses. ROMP well No. 31 is located just off the northeast corner of the Basso site. Having a ROMP well adjacent to the Basso site increases confidence in the specific geological information being used in the groundwater model to assess potential impacts from the proposed uses. ROMP well No. 17 is located approximately 1/2 mile from DCAP member Behren's well. Data from both wells were considered in assessing potential impacts from the proposed water use. Based on available information, the possible sources of groundwater for the proposed use at the Basso site are the surficial aquifer, intermediate aquifer, and the Upper Floridan Aquifer systems. To ensure sufficient quantities of water for the proposed use and to avoid potential impacts to environmental features, such as wetlands and surface waters, the District will require the proposed use to limit withdrawals to solely the Upper Floridan Aquifer. By examining stratigraphic cross sectional information generated from the ROMP wells, particularly ROMP No. 31 well, which is in close proximity to the Basso site, District staff were able to determine, with reasonable certainty, the approximate depths of the aquifers at the Basso well site. To ensure that the well will be open solely to the Upper Floridan Aquifer, the permit requires the Basso well to have a minimum of 400 feet of casing, with an estimated well depth of 1,000 feet. Based upon available information concerning the construction of other wells in the vicinity of the proposed Basso well, the District is reasonably assured that a well cased for a minimum of 400 feet will draw water only from the Upper Floridan Aquifer and will minimize the potential for water to move between the aquifers through the well. The well construction requirements imposed for Basso's well are in line with the best available stratigraphic information and with known construction of wells in the area. By casing the well to a depth of 400 feet and due to the extremely low leakage of the intermediate confining unit, the intermediate and surficial aquifers will be buffered from impacts associated with the proposed use. The District will deny a water use permit application if the proposed withdrawal of water, together with other withdrawals, would cause an unmitigated adverse impact on a legal water withdrawal existing at the time of the application. The District considers an adverse impact "to occur when the requested withdrawal would impair the withdrawal capacity of an existing legal withdrawal to a degree that the existing withdrawal would require modification or replacement to obtain the water it was originally designed to obtain." District BOR, page B4-14. Based upon an assessment of individual and cumulative regional information, there are no existing legal uses of water that will be adversely impacted as a result of the proposed withdrawals. Based upon an assessment of individual and cumulative regional information, no quantity or quality changes that adversely impact the water resources, including both surface and groundwaters, are anticipated from the proposed withdrawals. The District requires that consideration be given to the lowest water quality available, which is acceptable for the proposed use. Lower quality water includes reclaimed water, collected stormwater, recovered agricultural tailwater, saline water or other sources. District BOR, page B4-12. For the proposed water use, there is no viable lower quality water source and no reclaimed water available near the site to use as an alternative to groundwater pumping. The Applicants are proposing to use the lowest quality water that is available. There are no known concerns regarding the quality of water in the Upper Floridan Aquifer at this location in Hardee County. Restricting the proposed water use to the Upper Floridan Aquifer will not cause water quality concerns or result in pollution to any of the aquifers. Simulated drawdowns to the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site, less than 1.4 feet at the nearest property boundary, and less than 1.2 feet at the nearest permitted well, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the intermediate aquifer of 0.9 feet at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the surficial aquifer of 0.01 feet or less at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, constitute a nearly undetectable impact to the surficial aquifer, which is not an adverse impact. The modeling simulations demonstrate that the proposed withdrawals will have no significant effect on the surficial aquifer and, therefore, will not cause adverse impacts to environmental features such as wetlands, lakes, streams, fish and wildlife, or other natural resources. None of the simulated drawdowns are considered to be predictions of adverse impacts, not even in the localized vicinity of the well site. Mr. Jackson explained that because the localized modeling simulations were small or insignificant and showed no adverse impacts, cumulative modeling is not considered necessary. Reasonable assurance on a cumulative basis is determined by assessing the potential localized impacts in conjunction with existing cumulative data for the region, such as the available ROMP data and hydrographs, which depict the existing regional condition, taking into account, on a cumulative basis, all existing uses as well as rainfall conditions and climate. Based on an assessment of the cumulative data and the modeling for individualized impacts, and applying professional judgment, District staff reasonably concluded that the proposed water use presents no concerns that it will cause, on either an individual or a cumulative basis, adverse impacts to the water resource or existing legal uses. Minimum flows and levels have not been established by the District for the area where the proposed use is located. (The parties stipulated that the District has not established minimum flows and levels pursuant to Section 373.042, Florida Statutes, for the Southern Water Use Caution Area (SWUCA)). Therefore, Rule 40D-2.301(1)(d), Florida Administrative Code, (requirements for minimum flows and levels), is not applicable to the proposed permit. The proposed use presents no concerns for saline water intrusion. The proposed use raises no concerns regarding causing pollution to the aquifer. There are no offsite land uses that will be adversely impacted as a result of this permit. Basso currently uses best management practices for water conservation in his ongoing farming operations, and intends to use such practices with the new farming operation authorized under the permit. In keeping with such practices, irrigation is stopped when the water reaches the end of the watering ditch. Basso uses seepage irrigation and tries to regulate the ditches so that there is a minimum, if no, runoff. Also, a watering cycle generally lasts from three to seven days before irrigation has to be resumed. Any runoff goes into "filtering ponds, before reaching ditches or creeks" in its raw content. Basso does not intend to farm during months of likely frost so no separate allocation for frost/freeze protection was requested or needed. Given these irrigation practices, water is not reasonably expected to be wasted. All necessary and feasible agricultural water conservation activities will be implemented upon issuance of the WUP. In addition, Specific Condition No. 3 of the proposed WUP requires the incorporation of best water management practices in all irrigation practices. The proposed use presents no concerns that it will otherwise be harmful to the water resource. The Applicants have met all the requirements for issuance of a WUP. Southern Water Use Caution Area The proposed water use site is located within the SWUCA. The District established the SWUCA as a means of addressing on a regional scale concerns about long-term impacts to the water resource. Water use caution areas were created in recognition of regional water concerns. There have been drought conditions in the area which have caused reduced aquifer levels. The proposed water use site is not within the "Most Impacted Area" (MIA), which is located approximately 18 miles to the west of the site in Manatee County, nor within the "East Tampa Bay Water Use Cautionary Area" (ETB WUCA), which is approximately six miles to the west of the proposed site, also in Manatee County. (The SWUCA includes the MIA and ETB WUCA.) Pending final adoption of rules for the SWUCA, the District will continue to issue WUPs for proposed water uses that meet the conditions for issuance. The District cannot treat new uses and existing renewal uses any differently when considering the issuance of a permit. Once SWUCA rules and minimum flows and levels are established, the District expects to rely on a more regional approach to address long-term cumulative impacts over the entire use caution area, instead of relying on a permit-by-permit basis to address regional concerns. Standard Condition No. 9 of the proposed WUP requires the permittee to cease or reduce withdrawals as directed by the District, if water levels in the aquifers fall below the minimum levels established by the District Governing Board. The proposed withdrawal will use a seepage with mulch irrigation method, which has a 50 percent efficiency level. See footnote 1. This is the minimum efficiency level currently required for agricultural WUPs within the SWUCA, which approve the use of this irrigation method. As SWUCA rules come into effect, a higher percentage efficiency level probably will be required, as is now required in the Eastern Tampa Bay Water Use Caution Area and also in the Highlands Ridge Water Use Caution Area. Consequently, Standard Condition No. 11 of the proposed WUP requires that, when SWUCA rules are implemented, the permittee must comply with any higher efficiency level or other special regulation that may be required for the SWUCA area. DCAP's Challenge to the Proposed WUP DCAP does not keep official membership records. It does not maintain any list of current members. According to Behrens, there are five members of the board of directors. DCAP does not hold corporate meetings, annual meetings or maintain corporate records. Members do not meet. There are no means to document the existence of members for this organization. Behrens is a member of DCAP. He has owned five acres adjoining the west side of Horse Creek (in DeSoto County) since 1985. Behrens complains that the District does not look at the cumulative effect on his well and other people he knows, such as George Chase. Behrens is concerned with any lowering of the water level in the area, including Horse Creek. He believes that approval of wells in the area, including the proposed well, is the straw that is breaking the camel's back. Mr. Chase shares this view. Behrens relies on an artesian free-flowing, two-inch diameter well, for domestic water use, located in the intermediate aquifer, approximately 150 feet deep. (Behrens' well is approximately 18-20 miles from the proposed Basso well.) For most of the time he has lived there, the well had an electric pump for obtaining water. Approximately one year ago, the pump went bad, and a replacement system has not been installed. Currently, Behrens has no pump on the well, and in dry periods, has to obtain water for domestic uses from nearby Horse Creek, which is low during the dry season. (Behrens depends on Horse Creek to pursue his recreation, wildlife, and aesthetic values.) Having a flowing artesian well will enable him to obtain water from the well without having to install an electrical pump, a situation which is desired by Behrens, in part, because the property is in a flood plain and experiences frequent flooding and electrical outages. Not all artesian wells flow. Artesian wells are completed into confined aquifers in which the water in a tightly cased well, will rise to a level above the formation being measured. Water would have to rise above the land surface to be a flowing well. For a well to be artesian, the well must be under confined pressure. For a well drawing water from a confined aquifer, such as the intermediate or the Upper Floridan Aquifer systems, the measured water level in the well is a reflection of the amount of potentiometric pressure in the well. This level can be affected just as much by the amount of recharge as it can by the amount of water withdrawals. There is no evidence that the proposed water use will adversely impact the flowing nature of either Behrens' or Chase's well. The evidence demonstrates that the proposed water use will not adversely impact Behrens' well. George Chase is a member of DCAP. Mr. Chase lives in Arcadia, DeSoto County, Florida. His property is adjacent to the Peace River. Mr. Chase's well is a two-inch diameter well, believed to be about 150 feet deep and equipped with a 12-volt DC solar-powered pump. Mr. Chase has in the past relied on artesian pressure within the confined intermediate aquifer to supply water to his solar-powered home. The solar-powered pump assists in supplying water to the home. In recent years, Mr. Chase has experienced low water pressure in his well. In Spring 2000, Mr. Chase contacted the District to complain that when an adjacent citrus grove was irrigating the groves, it appeared to affect the water level in his well such that the well's ability to flow was impacted. (According to Mr. Chase, his neighbors have had problems obtaining sufficient water from their wells and reaching water with standard pumps.) This citrus grove is an existing legal user of water that pre-existed Mr. Chase's well. In recent years, numerous domestic wells have been constructed in the vicinity of the Chase home that are large diameter wells utilizing submersible pumps with 110-volt AC power. These wells are more efficient at producing water than the type of well and pump being used by Mr. Chase, are located within a few hundred feet of Mr. Chase's well, and are open to the intermediate aquifer as is the Chase well. Based upon the District's experience in other areas, where there is a cluster of domestic wells drawing from the same intermediate aquifer, such adjacent wells have a much greater impact on each other than do other more distant wells, such as the previously discussed citrus irrigation wells, that are open solely to the confined Upper Floridan Aquifer System. This conclusion is based upon monitoring of the ROMP sites in the affected areas. Mr. Chase's well is approximately ten miles from the proposed withdrawal site. There is no basis to conclude that the proposed water use will cause any adverse impacts to Mr. Chase's well. DCAP members' interests are not affected any differently by the proposed use than are the interests of the general public. DCAP has produced no evidence to support its assertion that the issuance of this permit will result in lowered water levels in the Horse Creek and Peace River or other surface waters. DCAP has produced no evidence to support its assertion that the permit will cause adverse impacts to surface water flows or surface waters or to environmental features such as vegetation, fish, and wildlife. DCAP has produced no evidence that its substantial interests are affected by the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southwest Florida Water Management District enter a final order: Determining that Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc., have satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of WUPs;3 Issuing proposed General Water Use Permit No. 20012185.000, as set forth in District Exhibit No. 4; and Finding that DCAP lacks standing to challenge the issuance of the permit. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002.
The Issue Whether proposed Water Use Permits Nos. 20012236.000 (the Potable Water Permit) and 20012239.000 (the Irrigation Permit) and proposed Environmental Resource Permit No. 43020198.001 (the ERP) should be issued by the Respondent, Southwest Florida Water Management District (the District).
Findings Of Fact The Parties The individual Petitioners, Farnsworth, Roop, and Varnum are all Florida citizens and residents of Sumter County. None of the individual Petitioners offered any evidence relating to direct impacts that the ERP would have on their property. With respect to the Potable Water and Irrigation Permits, anecdotal testimony was presented by Petitioners and Wing and Weir relating to well failures and sinkholes in the area. Two Petitioners, Roop and Varnum, live in close proximity to the property encompassed by the three permits. Petitioner Farnsworth’s property is approximately three and a half miles from the project boundary. Wing and Weir live approximately four and a half to five and 18 miles from the project site, respectively. SCAID is a Florida not-for-profit corporation that has approximately 130 members. Farnsworth, the president of SCAID, identified only Roop and Varnum as members who will be directly affected by the activities to be authorized by the permits. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. The Utility and the Authority are limited liability companies, of which the Villages Inc. is the managing partner. The Villages Inc. is a Florida corporation. The Utility, which will serve as a provider of potable water, is regulated by the Public Service Commission, while the Authority which will provide irrigation water, is not. The Villages Inc., Development The Villages Inc. is a phased, mixed use, retirement community, which is located at the intersecting borders of Lake, Marion, and Sumter Counties. Development has been on going since at least 1983, with a current planning horizon of the year 2019. Currently, there are 15,362 constructed dwelling units in the built-out portion of the Villages Inc. that are located in Lake County and the extreme northeast corner of Sumter County. The portion located in Marion County is 60 percent complete, with 750 homes completed and another 600 under construction. Approximately another 22,000 residences are planned for development in Sumter County by the year 2012, with an additional 10,200 by the year 2019. However, the Potable Water and Irrigation Permits are only for a six-year duration, and the ERP has a duration of only six years. None of the permits authorize development activities beyond that time frame. Generally speaking, the three permits at issue include an area owned by the Villages Inc. that lies in northeast Sumter County South of County Road 466 and North of County Road 466A. However, it is not projected that this entire area will be built-out during the terms of three proposed permits. Area Hydrology and Topography In the area of the Villages Inc., there is a layer of approximately five to ten feet of sand at the land surface, which is underlain by ten to 70 feet of a clayey sand. Both of these constitute the surficial aquifer and are extremely leaky, allowing water to percolate easily through to a lower layer. Except in the vicinity of Lake Miona, there is no water in the surficial aquifer except after rainfall events. The clayey sand layer is underlain by the Upper Floridan, a limestone unit. The top of this limestone layer ("the top of the rock") occurs at fluctuating depths of between 30 and 70 feet. At approximately 350 to 400 feet below the land surface, there begins a transition to a denser unit that serves as a confining layer between the Upper Floridan production zone and the Lower Floridan production zone. This confining layer, which was confirmed by drilling at three locations in the Villages Inc. is approximately 150 feet thick in the area of the Villages Inc. Another transition, this time to a less dense formation, begins at approximately 550 to 600 feet, which is considered the top of the Lower Floridan production zone. While testing conducted on the project site indicated almost no leakage between the Upper and Lower Floridan production zones, it is generally known by experts that there is some exchange of water between the two layers. Both the Upper and the Lower Floridan contain water that meets potable water standards and both are considered water production zones. The water quality of the two zones is not significantly different. The project area is prone to karst activity, that is, the formation of sinkholes. Sinkholes are formed as a result of the collapse of the overburden above subsurface cavities which have been formed through a very gradual dissolution of limestone, thus resulting in a "sink" at the land surface. Surface water bodies in the area include Lake Miona, Black Lake, Cherry Lake, and Dry Prairie, as well as several other small wetlands. The Potable Water and Irrigation Permits The potable water permit is for the withdrawal from the Upper Floridan Aquifer of 1.164 million gallons of water per day (MGD), on an annual average, for potable use in residences and both commercial and recreational establishments. It also limits the maximum withdrawal during peak months to 2.909 MGD. The Irrigation Permit is for the withdrawal from the Lower Floridan Aquifer of 2.850 MGD, on an annual average, for use in irrigation. The peak month usage rate permissible under the proposed permit would be 9.090 MGD. Water withdrawal under the Irrigation Permit will be used for the irrigation of residential lawns, common areas, commercial landscaping, and golf courses. Modeling of Drawdowns In assessing the impacts of proposed water withdrawals from an aquifer, District personnel considered effects on the aquifers and on-surface water features in the area. Computer- generated models of the predicted effects of the Potable Water and Irrigation Permits withdrawals provided one of the principal bases for this assessment. The primary geologist assigned to review the permit applications reviewed two of the models submitted by the Utility and the Authority (jointly the WUP Applicants) and ran one personal model of her own in order to predict the effects of the proposed withdrawals on the aquifers, as well as on any wetlands and other surface water bodies. In particular, the models predict both the vertical and horizontal extent to which the withdrawals may lower the level of water within the aquifers and in-surface waters under various conditions. One of the models submitted by the WUP Applicants predicted drawdowns during a 90-day period of no rainfall while the other predicted the impacts of the withdrawals over the life of the permits, considered cumulatively with the effects of withdrawals from the already-existing Villages' development in Sumter, Marion, and Lake Counties. The District’s geologist modeled the impacts of the withdrawals over the life of the permits and included the cumulative effects of all of the current Villages' withdrawals in Sumter County. All of these models included the combined effects of both the proposed Potable Water and the Irrigation Permits. Based upon these models, it is concluded that there will be no significant drawdowns as a result of the withdrawals authorized by the proposed water use permits. Specifically, the only predicted drawdown in the surficial aquifer (0.25 feet of drawdown) is in an area where there are no natural surface water features. Drawdown in the Upper Floridan is predicted at between 0.1 and 0.2 feet, while the drawdown in the Lower Floridan is predicted at a maximum of 1.5 feet. These minor drawdowns are not expected to cause any adverse impacts. Transmissivity is the rate at which water moves horizontally through the aquifer. In areas with high transmissivity, the results of water withdrawals from an aquifer will generally be low in magnitude, but broad in lateral extent. Water withdrawals from areas of low transmissivity will result in cones of depression that are more limited in lateral extent, but steeper vertically. The use of too high a transmissivity rate in a model, would overpredict the horizontal distance of the drawdowns caused by withdrawals, but would underpredict the vertical drawdown in the immediate vicinity of the withdrawal. Conversely, use of too low a transmissivity would over-predict the effects in the immediate vicinity of the withdrawal but underpredict the lateral extent of the drawdown. The WUP Applicants’ models used a transmissivity value for the Lower Floridan Aquifer of 100,000 feet squared per day ("ft.2/d'). The WUP Applicants’ consultant derived the transmissivity values from a regional model prepared by the University of Florida. The regional model uses a transmissivity value for the entire region of 200,000 ft.2/d for the Lower Floridan. While that transmissivity is appropriate for assessing large-scale impacts, on a more localized level, the transmissivity of the aquifer may be lower. Therefore, the WUP Applicants’ consultant met with District representatives and agreed to use a value half that used in the University of Florida model. A similar approach was used for the transmissivity value used in modeling effects in the Upper Floridan. Notably, specific transmissivity values recorded in four wells in the Villages Inc. area were not used because two of these wells were only cased to a depth of just over 250 feet, with an open hole below that to a depth of 590 feet. Thus, the transmissivity measured in these wells reflect conditions in the confining layer at the immediate location of the wells - not the transmissivity of the Lower Floridan production zone. Further, site-specific information on transmissivity, measured during pump tests at individual wells, does not correlate well to the transmissivity of the aquifer, even at short distances from the well. Transmissivities measured at individual wells are used to determine the depth at which the pump should be set in the well, not to determine the transmissivity of the aquifer. Thus, the use of transmissivities derived from the regional model, but adjusted to be conservative, is entirely appropriate. Moreover, using a transmissivity in her modeling of the project impacts of 27,000 ft.2/d for the Lower Floridan Aquifer, the district geologist’s model predicted no adverse impacts. Leakance is the measure of the resistance of movement vertically through confining units of the aquifer. The leakance value used by the District for the confining layer between the Upper and Lower Floridan was taken from the University of Florida model. Tests conducted on the site actually measured even lower leakance values. Thus, the evidence establishes that the leakance value used in the WUP Applicants’ and the District’s modeling for the Floridan confining layer was reasonable and appropriate. Competent, substantial evidence also establishes that the leakance value used for Lake Miona was reasonable. The WUP Applicants submitted to the District substantial data, gathered over several years, reflecting the balance of water flowing into Lake Miona and the lake’s levels in relation to the potentiometric surface. This documentation verified the leakance value used for Lake Miona in the modeling. Finally, the District modeling used appropriate boundary condition parameters. The District modeling used what is known as the "constant head" boundary and assumes the existence of water generated off-site at the boundaries. Such a boundary simulates the discharge of the aquifer at a certain level. The use of constant head boundaries is an accepted practice. The modeling conducted on behalf of the District and the Applicants provides a reasonable assurances that the Potable Water and Irrigation Permits will not cause adverse water quality or quantity changes to surface or groundwater resources, will not cause adverse environmental impacts to natural resources, and will not cause pollution of the aquifer. Furthermore, because the predicted drawdowns are so insignificant, reasonable assurances have been provided that the withdrawals will not adversely impact existing off-site land uses or existing legal withdrawals. The modeling also provides reasonable assurances that the withdrawals will not be harmful to the water resources of the District. Moreover, monitoring requirements included in the proposed Potable Water and Irrigation Permits provide additional reasonable assurance that – should the withdrawal effects exceed those predicted by the modeling – such effects are identified and necessary steps are taken to mitigate for any potential impacts. The District has reserved the right to modify or revoke all or portions of the water use permits under certain circumstances. Specifically, the proposed Potable Water Permit requires a monitoring plan that includes the following pertinent provisions: There shall be no less than three control wetland and ten onsite wetland monitoring sites; A baseline monitoring report, outlining the current wetland conditions; * * * A statement indicating that an analysis of the water level records for area lakes, including Miona Lake, Black Lake, Cherry Lake, Lake Deaton and Lake Griffin, will be included in the annual report; A statement indicating that an analysis of the spring flow records for Gum Spring, Silver Spring, and Fenney Spring, will be included in the annual report; * * * Wildlife analyses for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods to determine success of the mitigation; A mitigation plan for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods and thresholds to determine success of the mitigation; An annual report of an analysis of the monitoring data . . . . Similar provisions are included in the proposed irrigation permit. The WUP Applicants, in conjunction with the District, have developed sites and methodologies for this monitoring. Reasonable Demand The water to be withdrawn under the proposed Potable Water Permit will serve 10,783 people. This total results from the simple multiplication of the number of residences to be built during the next six years (5,675) by the average number of residents per household (1.9). Those numbers are based upon historical absorption rates within the Villages Inc. development since 1983, an absorption rate that doubles approximately every five years. The Utility proposed a per capita use rate of 108 gallons per day for potable use only. District personnel independently verified that per capita rate, based upon current usage in the existing portions of the Villages Inc. and determined that the rate was reasonable. Based upon the population projections and the per capita rate, the District determined that there is a reasonable demand for the withdrawal of the amount of water, for potable purposes, that is reflected in the Potable Water Permit. The Utility has provided reasonable assurance regarding the Utility’s satisfaction of this permitting criterion. As to the irrigation permit, the Villages Inc. plans, within the next six years, to complete the construction of 1,911 acres of property that will require irrigation. The amount of water originally requested by the Authority for irrigation withdrawals was reduced during the course of the application process at the request of the District. The District determined the reasonable amount of irrigation water needed through the application of AGMOD, a computer model that predicts the irrigation needs of various vegetative covers. Since the Authority intends to utilize treated wastewater effluent as another source of irrigation water, the District reduced the amount of water that it would permit to be withdrawn from the Lower Floridan for irrigation. The District, thus, determined that the Authority would need 1.59 MGD annual average for recreational and aesthetic area irrigation and 1.26 MGD annual average for residential lawn irrigation, for a total of 2.85 MGD. The Villages Inc. also plans to accumulate stormwater in lined ponds for irrigation use. However, unlike its treatment of wastewater effluent, the District did not deduct accumulated stormwater from the amount of water deemed necessary for irrigation. This approach was adopted due to the inability to predict short-term rainfall amounts. The uncontroverted evidence of record establishes reasonable assurances that there is a reasonable demand for the amount of water to be withdrawn under the proposed irrigation permit. Conservation and Reuse Measures Both the Utility and the Authority applications included proposed measures for the conservation and reuse of water. The conservation plan submitted in conjunction with the irrigation permit application provides for control valves to regulate both the pressure and timing of irrigation by residential users; contractual restrictions on water use by commercial users; xeriscaping; and an irrigation control system for golf course irrigation that is designed to maximize the efficient use of water. In addition, in the proposed permits, the District requires the Utility and the Authority to expand upon these conservation measures through such measures as educational efforts, inclined block rate structures, and annual reporting to assess the success of conservation measures. The Authority also committed to reduce its dependence on groundwater withdrawals through the reuse of wastewater effluent, both from the on-site wastewater treatment facility and through contract with the City of Wildwood. Reasonable assurances have been provided that conservation measures have been incorporated and that, to the maximum extent practicable, reuse measures have been incorporated. Use of Lowest Available Quality of Water In addition to the reuse of treated wastewater effluent, the Authority intends to minimize its dependence on groundwater withdrawals for irrigation use through the reuse of stormwater accumulated in lined ponds. Thirty-one of the lined stormwater retention ponds to be constructed by the Villages Inc. are designed as a component of the irrigation system on-site. Ponds will be grouped with the individual ponds within each group linked through underground piping. There will be an electronically controlled valve in the stormwater pond at the end of the pipe that will be used to draw out water for irrigation purposes. These lined stormwater ponds serve several purposes. However, the design feature that is pertinent to the reuse of stormwater for irrigation is the inclusion of additional storage capacity below the top of the pond liner. No groundwater will be withdrawn for irrigation purposes unless the level of stormwater in these lined ponds drops below a designed minimum irrigation level. Groundwater pumped into these ponds will then be pumped out for irrigation. Thus, the use of groundwater for irrigation is minimized. The Authority has met its burden of proving that it will use the lowest quality of water available. With respect to the potable permit, the evidence establishes that there are only minor differences between the water quality in the Upper Floridan and Lower Floridan in this area. The Upper Floridan is a reasonable source for potable supply in this area. Thus, reasonable assurances have been provided by the Utility that it will utilize the lowest water quality that it has the ability to use for potable purposes. Waste of Water In regard to concerns that the design of the Villages Inc.'s stormwater/irrigation system will result in wasteful losses of water due to evaporation from the surface of the lined ponds, it must be noted that there are no artesian wells relating to this project and nothing in the record to suggest that the groundwater withdrawals by either the Utility or the Authority will cause excess water to run into the surface water system. Additionally, the evidence establishes that, to the extent groundwater will be withdrawn from the Lower Floridan and pumped into lined stormwater ponds, such augmentation is not for an aesthetic purpose. Instead, the groundwater added to those ponds will be utilized as an integral part of the irrigation system and will be limited in quantity to the amount necessary for immediate irrigation needs. Finally, the water to be withdrawn will be put to beneficial potable and irrigation uses, rather than wasteful purposes. Under current regulation, water lost from lined stormwater ponds through evaporation is not considered as waste. Thus, the Authority and the Utility have provided reasonable assurances that their withdrawals of groundwater will not result in waste. The ERP The stormwater management system proposed by the Villages Inc. will eventually serve 5,016 acres on which residential, commercial, golf course, and other recreational development will ultimately be constructed. However, the proposed permit currently at issue is preliminary in nature and will only authorize the construction of stormwater ponds, earthworks relating to the construction of compensating flood storage, and wetland mitigation. Water Quality Impacts The stormwater management system will include eight shallow treatment ponds that will be adjacent to Lake Miona and Black Lake and 45 lined retention ponds. Thirty-one of these lined ponds will serve as part of the irrigation system for a portion of the Villages Inc.'s development. All of these ponds provide water quality treatment. The unlined ponds will retain the first one inch of stormwater and then overflow into the lakes. The ponds provide water quality treatment of such water before it is discharged into the lakes. The water quality treatment provided by these ponds provides reasonable assurances that the project will not adversely impact the water quality of receiving waters. While they do not discharge directly to surface receiving waters, the lined retention ponds do provide protection against adverse water quality impacts on groundwater. There will be some percolation from these ponds, from the sides at heights above the top of the liner. However, the liners will prevent the discharge of pollutants through the highly permeable surface strata into the groundwater. The Villages Inc. designed the system in this manner in response to concerns voiced by the Department of Environmental Protection during the DRI process regarding potential pollutant loading of the aquifer at the retention pond sites. Furthermore, by distributing the accumulated stormwater - through the irrigation system - over a wider expanse of vegetated land surface, a greater degree of water quality treatment will be achieved than if the stormwater were simply permitted to percolate directly through the pond bottom. There is no reasonable expectation that pollutants will be discharged into the aquifer from the lined ponds. If dry ponds were used, there would be an accumulation of pollutants in the pond bottom. These measures provide reasonable assurances that there will be no adverse impact on the quality of receiving waters. Water Quantity Impacts With regard to the use of lined retention ponds, as part of the Villages Inc.’s stormwater system and the impact of such ponds on water quantity, the evaporative losses from lined ponds as opposed to unlined ponds is a differential of approximately one (1) inch of net recharge. The acreage of the lined ponds - even measured at the very top of the pond banks - is only 445 acres. That differential, in terms of a gross water balance, is not significant, in view of the other benefits provided by the lined ponds. As part of the project, wetlands will be created and expanded and other water bodies will be created. After rainfalls, these unlined ponds will be filled with water and will lose as much water through evaporation as would any other water body. The design proposed by the Villages Inc., however, will distribute the accumulated stormwater across the project site through the irrigation of vegetated areas. The documentation submitted by the Villages Inc. establishes that the ERP will not cause adverse water quantity impacts. The Villages Inc. has carried its burden as to this permitting criterion. Flooding, Surface Water Conveyance, and Storage Impacts Parts of the project are located in areas designated by the Federal Emergency Management Administration (FEMA) as 100-year flood zones. Specifically, these areas are located along Lake Miona, Black Lake, between Black Lake and Cherry Lake, and at some locations south of Black Lake. Under the District’s rules, compensation must be provided for any loss of flood zone in filled areas by the excavation of other areas. The District has determined, based upon the documentation provided with the Villages Inc.’s application, work on the site will encroach on 871.37 acre feet of the FEMA 100-year flood zone. However, 1,051.70 acre feet of compensating flood zone is being created. The Villages Inc. proposes to mitigate for the loss of flood zone primarily in the areas of Dry Prairie and Cherry Lake. At present, Cherry Lake is the location of a peat mining operation authorized by DEP permit. Mining has occurred at that site since the early 1980s. The flood zone mitigation proposed by the Villages Inc. provides reasonable assurance that it will sufficiently compensate for any loss of flood basin storage. The Villages Inc.'s project provides reasonable assurance that it will neither adversely affect surface water storage or conveyance capabilities, surface or groundwater levels or surface water flows nor cause adverse flooding. Each of the 45 retention ponds to be constructed on-site will include sufficient capacity, above the top of the pond liner, to hold a 100-year/24-hour storm event. This includes stormwater drainage from off-site. In addition, these ponds are designed to have an extra one foot of freeboard above that needed for the 100-year/24-hour storm, thus providing approximately an additional 100 acres of flood storage beyond that which will be lost through construction on-site. Furthermore, the Villages Inc. has proposed an emergency flood plan. In the event of a severe flood event, excess water will be pumped from Dry Prairie, Cherry Lake, and Lake Miona and delivered to the retention ponds and to certain golf course fairways located such that habitable living spaces would not be endangered. Environmental Impacts and Mitigation There are 601 acres of wetlands and surface waters of various kinds in the Villages Inc.’s project area. Forty-one acres of wetlands will be impacted by the work that is authorized under the ERP. Each of these impacted wetlands, along with the extent of the impact, is listed in the ERP. The impacts include both fill and excavation and all will be permanent. When assessing wetland impacts and proposed mitigation for those impacts, the District seeks to ensure that the activities proposed will not result in a net loss of wetland functionality. The object is to ensure that the end result will function at least as well as did the wetlands in their pre-impact condition. Functional value is judged, at least in part, by the long term viability of the wetland. While small, isolated wetlands are not completely without value, large wetland ecosystems – which are less susceptible to surrounding development – generally have greater long-term habitat value. The District’s policy is that an applicant need not provide any mitigation for the loss of habitat in wetlands of less than 0.5 acre, except under certain limited circumstances, including where the wetland is utilized by threatened or endangered species. Some wetlands that will be impacted by the Villages Inc.’s project are of high functional value and some are not as good. The Villages Inc. proposes a variety of types of mitigation for the wetlands impacts that will result from its project, all of which are summarized in the ERP. In all, 331.55 acres of mitigation are proposed by the Villages Inc. First, the District proposes to create new wetlands. Approximately 11 acres of this new wetland will consist of a marsh, which is to be created east of Cherry Lake. Second, it proposes to undertake substantial enhancement of Dry Prairie, a 126-acre wetland. Currently – and since at least the early nineties – Dry Prairie received discharge water from the peat mining operation at Cherry Lake. Without intervention, when the mining operations stop, Dry Prairie would naturally become drier than it has been for several years and would lose some of the habitat function that it has been providing. The Villages Inc.’s proposed enhancement is designed to match the current hydroperiods of Dry Prairie, thus ensuring its continued habitat value. Third, the Villages Inc. has proposed to enhance upland buffers around wetlands and surface waters by planting natural vegetation, thus providing a natural barrier. Placement of these buffers in conservation easements does not provide the Villages Inc. with mitigation credit, since a 25-foot buffer is required anyway. However, the District determined that the enhancement of these areas provided functional value to the wetlands and surface waters that would not be served by the easements alone. Fourth, the Villages Inc. will place a conservation easement over certain areas, including a 1500-foot radius preserve required by the Fish and Wildlife Conservation Commission (FWCC) around an identified eagles’ nest. These areas will also be used for the relocation of gopher tortoises and, if any are subsequently located, of gopher frogs. While the Villages Inc. is also performing some enhancement of this area, it will receive no mitigation credit for such enhancement – which was required to meet FWCC requirements. However, since the conservation easement will remain in effect in perpetuity, regardless of whether the eagles continue to use the nest, the easement ensures the continued, viability of the area’s wetlands and provides threatened and endangered species habitat. In order to provide additional assurances that these mitigation efforts will be successful, the District has included a condition in the proposed permit establishing wetland mitigation success criteria for the various types of proposed mitigation. If these success criteria are not achieved, additional mitigation must be provided. With the above described mitigation, the activities authorized under the ERP will not adversely impact the functional value of wetlands and other surface waters to fish or wildlife. The Villages Inc. has met its burden of providing reasonable assurances relating to this permit criterion. Capability of Performing Effectively The Villages Inc. has also provided reasonable assurances that the stormwater management system proposed is capable of functioning as designed. The retention ponds proposed are generally of a standard-type design and will not require complicated maintenance procedures. In its assessment of the functional capability of the system, the District did not concern itself with the amount of stormwater that the system might contribute for irrigation purposes. Rather, it focused its consideration on the stormwater management functions of the system. The question of the effectiveness of the system for irrigation purposes is not relevant to the determination of whether the Villages Inc. has met the criteria for permit issuance. Consequently, the record establishes that the documentation provided by the Villages Inc. contains reasonable assurances that the stormwater system will function effectively and as proposed. Operation Entity The Villages Inc. has created Community Development District No. 5 (CDD No. 5), which will serve as the entity responsible for the construction and maintenance of the stormwater system. CDD No. 5 will finance the construction through special revenue assessment bonds and will finance maintenance through the annual assessments. Similar community development districts were established to be responsible for earlier phases of the Villages Inc. The ERP includes a specific condition that, prior to any wetlands impacts, the Villages Inc. will either have to provide the District with documentation of the creation of a community development district or present the District with a performance bond in the amount of $1,698,696.00. Since the undisputed testimony at hearing was that CDD No. 5 has, in fact, now been created, there are reasonable assurances of financial responsibility. Secondary and Cumulative Impacts The Villages Inc.’s application also provides accurate and reliable information sufficient to establish that there are reasonable assurances that the proposed stormwater system will not cause unacceptable cumulative impacts upon wetlands or other surface waters or adverse secondary impacts to water resources. The system is designed in a manner that will meet water treatment criteria and there will be no secondary water quality impacts. Further, the use of buffers will prevent secondary impacts to wetlands and wetland habitats and there will be no secondary impacts to archeological or historical resources. In this instance, the stormwater system proposed by the Villages Inc. will function in a manner that replaces any water quantity or water quality functions lost by construction of the system. In its assessment of the possible cumulative impacts of the system, the District considered areas beyond the bounds of the current project, including the area to the south that is currently being reviewed under the DRI process as a substantial deviation. The District’s environmental scientist, Leonard Bartos, also reviewed that portion of the substantial deviation north of County Road 466A, in order to determine the types of wetlands present there. Furthermore, the District is one of the review agencies that comments on DRI and substantial deviation applications. When such an application is received by the District’s planning division, it is routed to the regulatory division for review. The District includes its knowledge of the DRIs in its determination that there are no cumulative impacts. Reasonable assurances have been provided as to these permitting criteria. Public Interest Balancing Test Because the proposed stormwater system will be located in, on, and over certain wetlands, the Villages Inc. must provide reasonable assurances that the system will not be contrary to the public interest. This assessment of this permitting criteria requires that the District balance seven factors. While the effects of the proposed activity will be permanent, the Villages Inc. has provided reasonable assurances that it will not have an adverse impact on the public health, safety, or welfare; on fishing or recreational values; on the flow of water; on environmental resources, including fish and wildlife and surface water resources; or on off-site properties. Furthermore, the District has carefully assessed the current functions being provided by the affected wetland areas. With respect to historical or archeological resources, the Villages Inc. has received letters from the Florida Department of State, Division of Historical Resources, stating that there are no significant historical or archeological resources on the project site that is the subject of this permit proceeding. Thus, the evidence establishes reasonable assurances that the Villages Inc.'s stormwater system will not be contrary to the public interest. Additionally, the District and Applicant presented uncontroverted evidence that the proposed project will not adversely impact a work of the District, and that there are no applicable special basin or geographic area criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered issuing Water Use Permit Nos. 20012236.000 and 20012239.000 and Environmental Resource Permit No. 43020198.001, in accordance with the District’s proposed agency action. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of June, 2002.
The Issue The issues to be determined in this proceeding are: whether the challengers have standing; and (2) whether Proposed Rule 40E-8.221(2) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The District is a government entity existing and operating pursuant to chapter 373, Florida Statutes, as a multi- purpose water management district. The District has the power and duty to adopt MFLs consistent with the provisions of part I of chapter 373. Sanibel is a barrier island sanctuary in Lee County and a duly-formed municipality with a population of more than 6,000. Sanibel is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. Sanibel is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. That is why tourists come from around the globe to visit Sanibel, and why Sanibel's residents move and remain there. Sanibel actively participated in the rulemaking process for the Proposed Rule from its inception. Sanibel submitted two technical comment letters to the District during the development of the Proposed Rule. Sanibel's natural resources director, James Evans, attended numerous public and technical meetings associated with the development of the Proposed Rule, speaking on the record at each of the public meetings prior to the adoption hearing by the District's governing board. The Town, located on Estero Island in Lee County, is also a barrier island community and duly-formed municipality with a population of more than 6,000. The Town is situated just south of the mouth of the Caloosahatchee River and on the southeastern edge of the Caloosahatchee River's greater estuarine area. The Town is known primarily for its natural beauty, including clear blue waters, shell beaches, world-class sport fisheries, and wildlife refuges. Cape Coral is a duly-formed municipality in Lee County and is the largest city between Tampa and Miami, with a population in excess of 150,000. Cape Coral is bordered on the south by the Caloosahatchee River and has over 400 miles of navigable canals and waterways, all of which are within the Caloosahatchee River's greater estuarine area. In addition, Cape Coral has an assigned load reduction allocation under the Basin Management Action Plan (BMAP) for the Caloosahatchee River Estuary (CRE) due to it being designated as impaired for dissolved oxygen and nutrients. Maintaining sufficient flow in the Caloosahatchee River would have a direct impact on Cape Coral's ability to meet its assigned load reduction allocation. In addition to living on or near the water, a substantial number of the residents of Sanibel, Cape Coral, and the Town engage in water-based recreational activities such as swimming, fishing, boating, kayaking, paddle boarding, bird watching, and nature observation in and around the Caloosahatchee River's greater estuarine area. Fort Myers is a duly-formed municipality in Lee County and has a population of approximately 80,000. Fort Myers is bordered by the CRE throughout its entire jurisdictional boundary. Fort Myers owns and maintains a yacht basin (Ft. Myers Yacht Basin), which includes a mooring field and an anchorage field in the Caloosahatchee River. Fort Myers presented testimony that commercial crabbing and recreational fishing have declined and that it has suffered economic harm due to water quality issues. Fort Myers owns the submerged land in the Caloosahatchee River from Marker 39 to Marker 58, and islands in the river. One such island will be used as a park for recreational activities such as canoeing, kayaking, and hiking for visitors to enjoy the Caloosahatchee River. Fort Myers also owns and operates piers and a public boat ramp within the Caloosahatchee River. Fort Myers' dock master has observed declines in seagrasses in the Caloosahatchee River during his 19-year career working at the Ft. Myers Yacht Basin. Fort Myers has adopted a Harbor Management Plan for the management of its mooring and anchorage fields in the Caloosahatchee River. Fort Myers has also been assigned a load reduction allocation under the BMAP for the CRE, and is responsible for a certain amount of pollution reduction over time. Bonita Springs is a municipality of more than 50,000 in Lee County. The borders of Bonita Springs include portions of Estero Bay, which, along with San Carlos Bay and the Caloosahatchee River, is part of the greater Lower Charlotte Harbor Estuary. Bonita Springs includes wildlife refuges, such as the Estero Bay Aquatic Preserve and Lovers Key State Park and Recreation Area. While Bonita Springs' strategic priorities include environmental protection and water quality, it does not have environmental staff or test water quality. Bonita Springs participates in Estero Bay Management and the Charlotte Harbor National Estuary Program (CHNEP). Bonita Springs provides financial assistance to the Caloosahatchee Citizen Sea Grass Gardening Project. Concerns regarding harm to the CRE and tape grasses are shared by a significant number of residents in Bonita Springs and Estero, including injury to the quality of life and recreational uses such as swimming, boating, and kayaking in the waterways. Estero is a municipality of more than 30,000 in Lee County. Estero borders the eastern portion of Estero Bay. Estero includes wildlife refuges, such as Estero Bay Aquatic Preserve and Koreshan State Park. While Estero has environmental policies, it does not have environmental staff or test water quality. Estero makes financial contributions to CHNEP. Estero is concerned that the Proposed Rule will affect its water quality, which could affect its residents' quality of life. Estero believes it could be harmed by poor water quality because its residents are portable retirees who can move away, or tourists who can choose not to visit. Captiva Island is situated at the mouth of the Caloosahatchee River, within the Caloosahatchee's greater estuarine area. CCP is a Florida not-for-profit corporation representing property owners, businesses, and the community of Captiva Island. Captiva Island is part of unincorporated Lee County and is located north of Sanibel. CCP has 200 financial contributors comprised of property owners, businesses, and residents on Captiva Island. CCP's mission includes protection of clean off-shore water, diverse and healthy marine life, and robust native vegetation along with the protection of mangrove fringe and water quality. CCP works with Lee County on provisions of the County's comprehensive plan, which include the quality of adjacent waters. CCP relied on the expertise of James Evans, the director of natural resources for Sanibel, and on the Sanibel- Captiva Conservation Foundation (SCCF). CCP was advised that the Proposed Rule was not sufficient to protect the environment and Vallisneria americana (Vallisneria) or tape grass during the dry season. Caloosahatchee River and Estuary The watershed of the Caloosahatchee River covers approximately 861,058 acres. The watershed consists of four sub-watersheds, three of which are upstream of the S-79 structure. The Tidal Caloosahatchee Basin sub-watershed (estuarine system) is downstream of the S-79 structure. The S-79 structure captures all the upstream discharges of fresh water that go into the estuarine system through the S-79 structure. Major tidal tributaries of the Tidal Caloosahatchee Basin are the Orange River and Telegraph Creek, which drain into the upper estuary downstream of the S-79 structure. Fresh water inflows from these and other tributaries also contribute fresh water into the estuarine system. The Caloosahatchee River was originally a natural watercourse running from its origin at Lake Flirt to San Carlos Bay. It is currently defined as the "surface waters that flow through the S-79 structure, combined with tributary contributions below S-79 that collectively flow southwest to San Carlos Bay." Fla. Admin. Code. R. 40E-8.021(2). Man-made alterations to the Caloosahatchee River began as early as 1884, but major alterations began in the 1930s with the authorization and construction of the C-43 Canal. The C-43 Canal runs 41.6 miles from Lake Okeechobee at Moore Haven, i.e., from the S-77 structure, to Olga, i.e., the S-79 structure. The C-43 Canal serves as a conveyance feature to drain water from the three sub-watersheds located upstream of the S-79 structure and convey regulatory discharges of water from Lake Okeechobee. In 1957, the United States Army Corps of Engineers (USACOE) prepared a report focused on drainage, flood control, and navigation needs of the Caloosahatchee River Basin, and one recommendation was construction of the S-79 structure. The key objectives of the S-79 structure were to eliminate undesirable salinity in the lower Caloosahatchee River, prevent the rapid depletion of water supplies, and raise the prevailing dry weather water table levels. The S-79 structure was constructed in 1965. It is a lock and dam structure that is also known as the Franklin Lock and Dam. The S-79 structure captures all upstream fresh water discharges that go into the CRE. The S-79 structure demarcates the head of the CRE, which extends 26 miles downstream to Shell Point, where it empties into San Carlos Bay in the southern portion of the greater Lower Charlotte Harbor Estuary. Most of this surface water flow takes a southerly route, flowing to the Gulf of Mexico under the Sanibel Causeway that crosses San Carlos Bay. When fresh water inflows are high, tidal action pushes some of this water back up into Matlacha Pass and Pine Island Sound. Additionally, some water exits to the south and flows into Estero Bay through Matanzas Pass. Salinity exhibits a strong gradient in the CRE. Changes in the watershed upstream of the S-79 structure have profoundly influenced the delivery of fresh water to the CRE. Runoff is now more variable with higher wet season flows and lower dry season discharges. Large volumes of fresh water during the wet season can flush salt water from the tidally-influenced sections of the water body, resulting in low salinity conditions throughout most of the CRE. In contrast, fresh water inflow at the S-79 structure can stop entirely during the dry season, especially during significant drought events. This results in saline intrusion that can extend upstream to the S-79 structure. Fluctuations of this magnitude at the head and mouth of the system cause mortality of organisms at both ends of the salinity gradient. Downstream of the S-79 structure, the CRE was significantly altered by multiple dredging activities, including the removal of extensive shoals and oyster bars. Seven automobile bridges, a railroad trestle, and the Sanibel Causeway were built between the 1880s and 1960s. A large canal network was built along the northern shoreline of the CRE in Cape Coral. To provide navigational access from the canal network to deeper water, multiple access channels were dredged within the CRE. Alterations to the delivery of fresh water combined with structural changes to the tidally-influenced sections of the water body have had lasting ecological consequences. These include the loss of extensive shoals and oyster bars, loss of a flourishing bay scallop fishery, and significant decline in seagrass cover in deeper areas. MFLs An MFL is the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area. The District's rules define significant harm as the "temporary loss of water resource functions, which results from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm." Fla. Admin. Code R. 40E-8.021(31). The rule further specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. Id. MFLs are calculated using the best information available. The regulatory agency is required to consider changes and structural alterations to watersheds, and the constraints such changes or alterations placed on the hydrology of an affected watershed. Certain waterbodies may not serve their historical hydrologic functions and recovery of these waterbodies to historical hydrologic conditions may not be economically or technically feasible. Accordingly, the regulatory agencies may determine that setting an MFL for such a water body based on its historical condition is not appropriate. Caloosahatchee MFL For the CRE, MFL criteria were designed to protect the estuary from significant harm due to insufficient fresh water inflows and were not guidelines for restoration of estuarine functions to conditions that existed in the past. The MFL criteria consider three aspects of the flow in terms of potential significant harm to the estuary: (1) the magnitude of the flow or the volume of fresh water entering the estuary; (2) the duration of time that flows can be below the recommended level before causing significant harm; and (3) the return frequency, or the number of times the MFL can be violated over a number of years before it results in significant harm, recognizing that natural climatic variability will be expected to cause fresh water inflows to fall below recommended levels at some natural frequency. The CRE MFL initially adopted in 2001 was primarily based on the salinity tolerance of one valued ecosystem component (VEC). The VEC was Vallisneria americana or tape grass, a fresh water aquatic plant that tolerates low levels of salinity. A major assumption of this approach was that flow and salinity conditions that protect Vallisneria would also protect other key organisms in the estuary. The 2001 CRE MFL was based on a regression model for estimating the relationship between surface salinity measured at the Ft. Myers monitoring station located in the Ft. Myers Yacht Basin and discharge at the S-79 structure. Although the District monitors surface and bottom salinity at multiple stations in the CRE, the Ft. Myers monitoring station is located centrally in the CRE and at the historical downstream extent of the Vallisneria habitat. The Ft. Myers monitoring station also has the most comprehensive period of record of monitoring data available. The fixed data sondes that monitor surface and bottom salinity are located at 20 percent and 80 percent of total river depth measured at mean low water. The data sondes continuously measure temperature and specific conductivity and, depending on the manufacturer, contains programs that calculate salinity. Those calculations are based on standards recognized and used worldwide by estuarine, marine, and oceanographic scientists.1/ The regression model only implicitly included inflows from the Tidal Caloosahatchee Basin sub-watershed downstream of the S-79 structure. To address this, during the 2003 re-evaluation, a linear reservoir model of Tidal Caloosahatchee Basin inflows was developed. The regression model results showed that a total inflow from S-79 plus the Tidal Caloosahatchee Basin of about 500 cubic feet per second (cfs) was required to produce a salinity of 10 at the Ft. Myers monitoring station. Thus, the 2001 CRE MFL of 300 cfs measured at the S-79 structure would produce a salinity of 10 at the Ft. Myers monitoring station only with additional inflow from the downstream Tidal Caloosahatchee Basin sub- watershed. However, that additional inflow estimate was highly uncertain. The conclusion was that actual flow measurements over a period of time were needed in order to perform more robust calibrations for the new models that were being developed. The Re-evaluation The District's re-evaluation effort began in 2010 after the Conservancy of Southwest Florida filed a petition requesting review of the Caloosahatchee MFL. At the time, the governing board denied the petition but directed staff to undertake additional research and monitoring to ensure a future revision would be supported by the best information available. The first step was to review the September 2000 Final Peer Review Report (PRR) for the initial adoption. The 2000 PRR identified several items the District should consider, including a hydrodynamic salinity model, a numerical population model for Vallisneria, quantification of habitat value for Vallisneria, and documentation of the effects of minimum flows on downstream estuarine biota. The 2000 PRR documented concerns that the current MFL was based solely on the salinity tolerance of Vallisneria and recommended using multiple indicator species. To address those recommendations, the District conducted studies to evaluate multiple ecological indicators, such as zooplankton, aquatic vegetation, oysters, benthic communities, and blue crabs, in the Caloosahatchee from the S-79 structure to beyond Shell Point. In addition, the District collected flow data from the Tidal Caloosahatchee Basin sub-watershed for at least five years to develop watershed, flow, and hydrodynamic models that could properly simulate inflows and salinity responses. When the initial research was complete in 2016, the District published the Draft Science Document containing 11 component studies. In September 2016, the District held a two- day Science Symposium to present the 11 component studies and gather public comment. In response to public comment, the District performed additional evaluations, modeling, and updated the component studies to produce a Draft Technical Document. A Peer Review Panel reviewed the Draft Technical Document, which included the Draft Science Document. The Peer Review Panel has over 150 years of combined relevant scientific experience. The Peer Review Panel toured the CRE by air and water. The District also held a Peer Review Session to engage the public and obtain feedback. The Peer Review Panel's 2017 report (PRP report) stated that the District had "crafted a well-executed and well- documented set of field and laboratory studies and modeling effort" to re-evaluate the CRE MFL. The PRP report supported the 11 component studies, the modeling, the evaluations, and the initial proposed rule language. The Final Technical Document published in January 2018 incorporated five different models and additional science, examining the entire watershed and the criteria itself. The Final Science Document was Appendix A to the Final Technical Document and contained the scientific research and analysis that was done for the 11 component studies, the modeling, and the additional scientific analyses performed in response to public and stakeholder input. The District initiated rule development in December 2017. Rule development workshops were held in February and June 2018 and a stakeholder technical meeting was held in May 2018. The District validated the comments after each workshop and meeting, and revised the proposed rule language. The District published its Notice of Proposed Rule on July 23, 2018.2/ At its September 13, 2018, meeting, the District's governing board held a public hearing on the Proposed Rule. The mayors of Sanibel, Cape Coral, and the Town publicly commented at the hearing. After considering public comments, the governing board adopted the Proposed Rule. The District documented and responded to each public comment, memorializing the information in the Final Technical Document. Later, after the rule workshops and May 2018 technical meeting, the District prepared and presented all of the updated information, including public comment, at the September 2018 adoption hearing. Thus, the District's re-evaluation process was open and transparent. The Re-evaluated Caloosahatchee MFL The science supporting the re-evaluation involved a comprehensive assessment of the effects of diminished dry season fresh water inflows on the CRE. The dry season was chosen for two reasons. First, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats. Second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The 11 component studies targeted specific concerns regarding physical and ecological characteristics. Together they offered a holistic understanding of the negative effects of diminished fresh water inflow on estuarine ecology. The re-evaluated MFL criteria were developed using a resource-based approach. The approach combined the VEC approach and the habitat overlap concept. The habitat overlap approach is based on the idea that estuaries serve a nursery function and salinity determines the distribution of species within an estuary, including distribution during different life stages. The combined approach studied the minimum flow requirements of the various indicator species in terms of magnitude, duration, and return frequency, resulting in the following three aspects of the flow: (1) for magnitude, a 30-day moving average flow of 400 cfs measured at the S-79 structure; for duration, an MFL exceedance occurs during a 365-day period when the 30-day moving average flow at S-79 is below 400 cfs and the 30-day moving average salinity exceeds 10 at the Ft. Myers salinity monitoring station; and (3) for return frequency, an MFL violation occurs when an exceedance occurs more than once in a five-year period. The magnitude component is based on the salinity requirements of Vallisneria, along with results from the 11 studies modeling salinity and considering the salinity requirements of the other VECs. The duration component is based mainly on the estimates of rate of loss of Vallisneria shoots when salinity rises above 10 and the recovery rate of the shoots when salinities fall back below 10. Return frequency was determined based on long-term rainfall records rather than flow measurements from the S-79 structure, which the PRP report felt was well justified. In addition to the component studies, the re-evaluated MFL criteria and existing recovery strategy were evaluated using a suite of hydrologic and ecological models simulating long-term fresh water inflow to the CRE associated with varying management options, the resulting salinity in the CRE, and the ecological response of indicator species that are sensitive to low fresh water inflows. Five models were utilized. Three models simulated fresh water inflows to the CRE: two for S-79 flows; and one for Tidal Caloosahatchee Basin sub-watershed flows. The other two models were a three-dimensional hydrodynamic salinity model and a Vallisneria model. Tidal Caloosahatchee Basin sub-watershed has a number of tributaries that drain fresh water into the CRE. The flow at several of the tributaries was monitored for a five-year period. The measured flow was used to calibrate a watershed model and conduct a long-term simulation. The results showed an average fresh water inflow for all seasons of approximately 430 cfs. The average fresh water inflow during the dry season was 245 cfs while the wet season average fresh water inflow was 613 cfs. Fresh water inflow from the Tidal Caloosahatchee Basin sub- watershed was approximately 20 percent of total fresh water inflow to the CRE while 80 percent was released through the S-79 structure. Petitioners' and Intervenors' Objections 400 cfs Is Too Low Sanibel relied on a memorandum prepared by Dr. David Tomasko (Tomasko report) concerning his company's review of the January 2018 Final Technical Document supporting the Proposed Rule. The Tomasko report, dated October 23, 2018, was in the form of a "technical memorandum" outlining "preliminary findings." The Tomasko report was admitted as a joint exhibit; however, Dr. Tomasko did not testify at the final hearing. The Tomasko report is hearsay that was not used to supplement or explain competent direct evidence. Although hearsay is admissible in this proceeding, it cannot be the sole basis for a finding of fact.3/ See § 120.57(1)(c), Fla. Stat. The District's expert witnesses, who testified at the final hearing, explained that ten of the 11 component studies identified average indicator flows at S-79 ranging from 237 to 545 cfs with standard deviations ranging from plus or minus 57 to plus or minus 774 cfs.4/ The District's experts performed three different evaluations of those flow results. They identified the mean of all the means, calculated the median of the means, and performed a probability density function. The flow results for each of the three evaluations were 381 cfs, 400 cfs, and 365 cfs, with standard deviations that ranged from plus or minus 277 cfs to plus or minus 706 cfs. The District's experts testified that the three flow results are indistinguishable from a statistical point of view. The District chose 400 cfs because it was the highest flow result, and, therefore, the most protective of the three. The Petitioners and Intervenors failed to present evidence that showed any deficiencies in the District's component studies, hydrologic, hydrodynamic, or statistical modeling, or analysis of compliance data. The preponderance of the evidence established that the District used the best available science to calculate the MFL criteria. The District did not act arbitrarily or capriciously when it chose 400 cfs as the magnitude component of the MFL criteria. Inclusion of Salinity in the MFL Criteria The preponderance of the evidence also established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. It supports essential ecological goods and services, is sensitive to salinity fluctuations at the ecosystem scale, and has value to a variety of stakeholders. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. A combination of field monitoring, mesocosm studies, and modeling results allowed the application of Vallisneria responses as a platform to quantify the effects of high salinity duration in the upper CRE. Component Study Eight reviewed the development and initial application of a simulation model for Vallisneria in the CRE. The Vallisneria model was used to evaluate the salinity conditions that led to net annual mortality, or, in other words, the duration of high salinity exposure that led to decreased Vallisneria shoots versus the duration of low salinity conditions required for recovery. Component Study Seven included an analysis of the relationship between the number of consecutive days where salinity at the Ft. Myers monitoring station was greater than 10 and the percentage of initial Vallisneria shoots remaining at the end of each high salinity period. To further evaluate the duration element associated with the MFL criteria, the field monitoring data contained in Component Study Seven was evaluated with the mesocosm and modeling results. All three sources were analyzed similarly to derive a combined curve showing high salinity exposure duration that is significantly harmful to Vallisneria. The model also provided information that was used to quantify the duration of low salinity conditions required for Vallisneria to recover a relative fraction of shoots after high salinity exposure. Merging the exposure and recovery evaluations facilitated a determination of the unfavorable salinity duration that could significantly harm Vallisneria habitat. With significant harm defined as the environmental harm from which two years are required to recover, the determination was that Vallisneria should experience no more than 55 consecutive days of salinity greater than 10. However, stakeholders expressed concerns regarding the percentage loss of Vallisneria habitat after 55 days of high salinity exposure. In response, the District conducted further analysis of modeling results and revised the duration component to accept the stakeholder recommendation, now expressed in the Proposed Rule, of a 30-day moving average salinity greater than 10. The Petitioners and Intervenors argued that by expressing the MFL as a "flow plus salinity component" the Proposed Rule enlarges, modifies, or contravenes the specific provisions of law implemented. However, the duration component is part of compliance and represents the duration of time that flows can be below the recommended level before causing significant harm to the indicator species Vallisneria. The MFL in the Proposed Rule is a 30-day moving average flow of 400 cfs measured at the S-79 structure. Flow is both measured and operationally controlled at the S-79 structure. However, as previously found, there are other sources of fresh water entering the CRE downstream of the S-79 structure. The District does not control and cannot control these downstream sources, which modeling reveals contribute approximately 20 percent of total fresh water inflow to the CRE. By including salinity, the District can account for fresh water inflows coming from the tidal basin when there are low or no flows at S-79 since the significant harm threshold in the CRE is directly related to salinity tolerance of the indicator species Vallisneria. The District's experts also testified that salinity can be used as a flow component because it is not affected by chemical or biological processes and is an indicator of how much fresh water is entering the system.5/ Salinity is included in the duration component of the MFL criteria and is an exceedance criterion because the science established that the salinity gradient is crucial to the overall health of the CRE. Including salinity in the duration component of the MFL criteria achieves the purpose of the statutory mandate to set MFLs that are designed to avoid significant harm to the water resources and ecology of the area. No Unit of Measurement for Salinity The Petitioners and Intervenors argued that the Proposed Rule is vague because the language does not contain any units for salinity. The UNESCO calculation is the standard equation used by the estuarine and marine science community to convert specific conductivity and temperature data to salinity. The District's experts testified that the UNESCO calculation reports salinity as a ratio, which is a dimensionless number and has no units. The District uses the UNESCO calculation and performs the conversion in a spreadsheet that it maintains. In some instances, certain brands of data sondes are programmed to perform the calculation and provide the salinity number. The preponderance of the evidence established that use of the practical salinity unit (PSU) is not technically correct. PSU is a misnomer, a pseudo-unit equivalent to a unitless salinity number. The Petitioners' and Intervenors' expert witness, Dr. Anthony Janicki, conceded there is no difference between reporting salinity as unitless or as PSU. And although technically incorrect, he suggested that placing the word "practical" or putting "PSU" in the Proposed Rule would reduce confusion and vagueness. However, since the preponderance of the evidence established that use of PSU is not technically correct, the use of a pseudo-unit would actually cause confusion instead of reduce confusion. The Petitioners and Intervenors also argued that the Proposed Rule is vague because the language does not state that the method of measuring salinity is specific conductivity, or that the equation used to convert specific conductivity and temperature data to salinity is the standard developed by UNESCO. The Petitioners and Intervenors essentially argued that members of the public and those who may be regulated by the Proposed Rule are left to guess about the method or methods used to measure salinity. Because the Proposed Rule identifies and locates by latitude and longitude coordinates the Ft. Myers salinity monitoring station as the location where salinity would be measured for compliance, the Proposed Rule language is not vague. The Proposed Rule is not vague because it does not describe the data sondes, what parameters are measured by the data sondes, and how those parameters are converted to a salinity number. Salinity Monitoring Location and Mean Low Water The Petitioners and Intervenors argued that the Proposed Rule is vague for failing to define the phrase "20% of the total river depth at mean low water," and is arbitrary or capricious for failing to include more than one salinity monitoring station. Total river depth or the water column depth is a standardized measurement that is made from the surface down to the bottom of the river bed. Mean low water is commonly understood in the oceanographic and coastal sciences community as the average of all low tides over the time period defined as the national tidal datum epic. The District's expert witness, Dr. Cassondra Armstrong, testified that mean low water can be determined by using two documents prepared by the National Oceanographic and Atmospheric Administration (NOAA), i.e., the NOAA tide charts and glossary. The District's expert witnesses testified that "20% of the total river depth at mean low water" is the location of the data sonde at the Ft. Myers monitoring station that measures surface salinity. This is also the depth at which Vallisneria is located in the CRE. Since, the Proposed Rule language simply identifies the location of the existing data sonde at the Ft. Myers salinity monitoring station, the language is not vague. The preponderance of the evidence established that the Ft. Myers salinity monitoring station has two salinity data sondes, the one at 20 percent of the total river depth and the other at 80 percent. The data sonde at 20 percent of the total river depth was identified in the Proposed Rule for the following reasons. First, this is the depth where Vallisneria grows and is representative of the salinity exposure for Vallisneria. Second, it guarantees the data sonde is always submerged and able to record data. Third, it has the most comprehensive period of record of monitoring data available. As previously found, Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE. The location of Vallisneria habitat in the upper CRE and its negative response to increased salinity made it an excellent candidate as an ecological indicator for fresh water inflow. Because the preponderance of the evidence established that Vallisneria continues to be a particularly useful indicator of environmental conditions in the CRE, the choice of the Ft. Myers monitoring station is not arbitrary or capricious. Water Resource Functions vs. Environmental Values The District's MFL rule specifies that a water body's specific water resource functions addressed by an MFL are defined in the MFL technical support document. See Fla. Admin. Code R. 40E-8.021(31). The Final Technical Document identified the relevant water resource functions of the CRE as fish and wildlife habitats, estuarine resources, water supply, recreation, navigation, and flood control. The Petitioners and Intervenors argued that the environmental values listed in Florida Administrative Code Chapter 62-40, also known as the Water Resource Implementation Rule, were not adequately addressed in the Final Technical Document. A proposed rule challenge is not the proper forum to determine whether a proposed rule is consistent with the Water Resource Implementation Rule. Such a determination is within the exclusive jurisdiction of the Department of Environmental Protection under section 373.114(2), Florida Statutes. Consistency of the District's Proposed Rule with the Water Resource Implementation Rule of the Department of Environmental Protection is not a basis in this proceeding for a finding that the Proposed Rule is an invalid exercise of delegated legislative authority. Other Issues The Petitioners and Intervenors raised other issues during the hearing, although not specifically argued in their proposed final order. Since those issues were identified as disputed issues in the Joint Pre-hearing Stipulation, they are addressed below. 1. Elimination of Single-day Exceedance Criterion During the rulemaking process, Sanibel and SCCF sent the District a letter requesting justification for eliminating the single-day exceedance salinity criterion in the current rule. The District staff evaluated the available Caloosahatchee River MFL compliance record, dating back to when the MFL was adopted in September 2001. The District maintains a historical record of MFL monitoring data and reviewed it to determine if the single-day exceedance salinity criterion was exceeded before the 30-day moving average criterion. The compliance record showed five exceedance events of the single-day salinity criterion have occurred. However, the compliance record also showed that the 30- day moving average salinity criterion had already been exceeded before the five events occurred. In other words, the single-day criterion was never exceeded before the 30-day moving average criterion. Based on this evaluation, the District eliminated the single-day exceedance salinity criterion because it did not provide any additional resource protection. The District's decision was not arbitrary or capricious. 2. Not Using the Latest Model Evaluation of recommended MFL criteria and a recovery strategy for the CRE were greatly aided by integration of a suite of hydrologic and ecological models simulating (1) long-term fresh water inflow associated with varying management options, (2) the resulting salinity in the estuary, and (3) ecological response of indicator species that are sensitive to low fresh water inflows. Five models were specifically utilized, including three models for simulations of fresh water inflows to the CRE, a three-dimensional hydrodynamic salinity model, and a Vallisneria model. The three models simulating fresh water inflows included (1) the South Florida Water Management Model (SFWMM) to simulate fresh water discharges at S-79, which includes regional operations of Lake Okeechobee and incorporates Caloosahatchee River irrigation demands; (2) the C-43 Reservoir Model, which uses the SFWMM-simulated daily S-79 flow as input and simulates the management benefit of the C-43 Reservoir; and (3) the Watershed (WaSh) Model to simulate tidal tributary inflow from the Tidal Caloosahatchee Basin sub-watershed. The Caloosahatchee Hydrodynamic/Salinity Model was based on the Curvilinear Hydrodynamic Three-dimensional Model (CH3D) modeling framework with the functionality of simulating the spatial salinity structure across the entire estuary. The Vallisneria Model took the CH3D modeled salinity as input to simulate Vallisneria growth at critical locations in the estuary. The District did review the more recent Environmental Fluid Dynamic Code (EFDC) model developed for the Caloosahatchee Total Maximum Daily Load (TMDL) and being used by the Department of Environmental Protection. The District's expert witness, Dr. Detong Sun, testified that until 2014, the hydrodynamic part of the EFDC model was not working well. He testified that in 2016, the District still had concerns and suggested the use of the District's continuous monitoring data from seven locations across the CRE rather than grab samples for model calibration. Dr. Sun's opinion was that the EFDC model has improved in recent years, but was still behind the CH3D model in terms of performance. The District's expert witness, Dr. Amanda Kahn, testified that the water quality component of the EFDC model was not appropriate for this re-evaluation because the MFL is about water quantity, not water quality. The water quality component of the EFDC model addresses nutrient loadings, not minimum flows. Dr. Kahn also testified that in setting MFL criteria for the CRE, salinity was not a water quality component. Salinity was used as a water quantity component because it does not change with biological processes and can be a measure of how much fresh water is coming into the system. Based on a preponderance of the evidence, the District's decision not to use the EFDC model was not arbitrary or capricious. 3. Seasonality The Petitioners and Intervenors argued that the District is required to set an MFL that varies by season. For the CRE, the District set MFL criteria that protect the system from low flow that would occur in either the wet or dry season. As previously found, the re-evaluation studies focused on the dry season for two reasons: first, because it is well-established that the upstream migration of salt combined with reduced fresh water inflow alters the health and productivity of estuarine habitats; and second, because the dry seasons are the times when the current MFL criteria are likely to be exceeded or violated. The MFL statute states that "when appropriate, [MFLs] may be calculated to reflect seasonal variations." § 373.042(1)(b), Fla. Stat. The preponderance of the evidence showed that for the CRE, it was not necessary to set an MFL that varied by season. Improper Purpose The Petitioners, Sanibel, Cape Coral, and the Town, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Petitioners did not participate in this proceeding for an improper purpose. The Intervenors, Fort Myers, Estero, Bonita Springs, and CCP, did not participate in this proceeding primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation. The Intervenors did not participate in this proceeding for an improper purpose.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).
Findings Of Fact General SFWMD is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. Acme is a dependent special district of the Village of Wellington, a municipality of the State of Florida. Polo is a Florida corporation and a developer in the Village of Wellington, Palm Beach County, Florida, including a 79-acre parcel of real property known as Peacock Pond, and other undeveloped property that are part of the subject of this permitting proceeding. Wellington Country Place Property Owners Association, Inc. (POA) is the property owners association for WCPPUD. Permit History 1978 Permit In 1978, SFWMD issued to Acme the original backbone SWM permit for approximately 18,000 acres, including primary drainage Basins A (to the north) and B (to the south). Pierson Road, which runs east/west, is the boundary between the two basins. (The backbone C-23 canal parallels Pierson Road to its immediate north.) Acme Basin A discharges to the C-51 canal, which flows east to the Atlantic Ocean. Acme Basin B, which consists of approximately 8,680 acres, discharges to the Loxahatchee National Wildlife Refuge (Refuge) through two Acme pump stations. The Refuge is part of what is now designated the Everglades Protection Area. The 1978 backbone permit, which modified a still earlier permit, established lower water control elevations in Basin A, which was being developed for urban use, than in Basin B, which was planned to remain largely in agricultural use. Under the 1978 permit, the maintained (regulation) stage in Basin A was set at 11' above mean sea level (msl) with discharge beginning at 12' msl during the wet season and 12' msl with discharge beginning at 13' msl during the dry season. The maintained stage in Basin B remained at 13' msl in both the wet and dry season. Under the 1978 permit, it was anticipated that routing surface water runoff in Basin A through canals and retention lakes would provide the water quality treatment required under the criteria in effect at the time (including a requirement to provide half an inch of detention over the entire Basin A for water quality treatment purposes.) At the time, planned residential development in the extreme southwest corner of Basin B was anticipated to generate only limited quantities of runoff due to the nature of typical development in 5-acre parcels; quality of runoff was expected to be better than from previous agricultural use. Presumably because there would be no change under the 1978 permit, water quality treatment in the remainder of Basin B was not addressed. 1979 Permit By 1979, Acme requested a permit modification for development of the Wellington WCPPUD, which is located entirely within Acme Basin B. The PUD's northern boundary is Pierson Road; the western boundary is the backbone C-2 canal; and the eastern boundary is the backbone C-6 canal. The north/south backbone C-4 canal divides the western third of the PUD from its eastern two-thirds; it also forms the western boundary of the area known as Peacock Pond. The southern boundary of the PUD generally follows the east/west backbone C-24 canal.2 The 1979 permit modification authorized construction and operation of water management facilities in portions of WCPPUD, including a 79-acre pumped retention area (which was to become known as Peacock Pond), pump station, and control structure. Under the 1979 permit, the maintenance stage (water control) elevation within WCPPUD only was set at 12' National Geodetic Vertical Datum (NGVD) (essentially, the same as msl) in the wet season and 13' NGVD in the dry season. The minimum road and finish floor elevations were established at elevation 16' and 17' NGVD, respectively. Without regard to seasonality, the retention area pump station was to begin operation when a stage of 13' NGVD was reached in the adjacent C-4 canal and was to discontinue operation when the system was drawn down to elevation 12' NGVD. The 1979 permit used the 79-acre area known as Peacock Pond as its central water quality feature. Runoff from WCPPUD was to be collected in roadside swales within road right-of-ways and routed by storm sewer inlets and pipe to either a proposed 12-acre lake or one of the collector swales or canals connected to the Peacock Pond site. The 1979 permit contemplated use of the Peacock Pond site as a "retention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then slowly lets the water out. In the 1979 permit, Acme was required to construct a berm or dike around the 79-acre area to create an above-ground impoundment to serve as the retention area. A pump was required to be installed at the northwest corner of Peacock Pond to pump water from the adjacent C-4 canal into the retention area. The berm or dike was to detain water on the site until it reached the level of a gravity flashboard riser outfall structure at the southwest corner of the site, which would be set at 15' NGVD and would return the water to Acme's C-4 canal just downstream of a broad-crested weir, which would be set at 14' NGVD. Additional discharge from the system would be provided by two 72-inch gravity-flow flashboard risers with crest elevation 14' NGVD-- one to the C-4 canal and the other to the C-6 canal. Water discharged from the system would flow south and west through Acme's system of Basin B canals, eventually discharging to the Refuge through the two pump stations to the south and southwest. During a rise in stage in the C-4 from 13' to 14' NGVD, the pump station in the northwest corner of Peacock Pond would continue filling the retention area. Considering pumped inflow of 4000 gallons per minute (gpm), the retention area would take 3.3 days to reach a peak stage of 16'. At that stage, 58 acre-feet of water would be stored within the retention area. SFWMD calculated that Peacock Pond would treat approximately 200 million gallons of water a year in this way. SFWMD and Acme have taken the position in this case that the sole purpose of Peacock Pond in the 1979 permit was to serve as a water quality treatment area for the Wellington WCPPUD. It is true that the 1979 permit contemplated that flood protection for Basin B would be provided through use of the two pumps discharging into the Refuge (Pump #1 capable of pumping at the rate of 100,000 gpm, and Pump #2 capable of pumping at 120,000 gpm). But, as subsequent events showed, the Peacock Pond retention area was part of an overall SWM system for WCPPUD that maintained water stage elevations there at a lower level than in the rest of Basin B. In other words, while designed primarily to provide water quality treatment, and not designated a flood control facility, it had some residual flood control benefit within WCPPUD. Actual Operation After 1979 Permit Although Peacock Pond was critical to the functioning of the SWM system for WCPPUD and Basin B, SFWMD never obtained from the owner the legal right to use it for SWM purposes. From 1979 to 1986, SFWMD was advised that the Peacock Pond facility was in substantial conformance with the permitted conditions. But some time after property, including Peacock Pond, was transferred to Landmark Land Company of Florida, Inc., the pumps in the northwest corner of Peacock Pond stopped being used regularly.3 Instead, Acme water control structure 115 (a 48-inch culvert and 72-inch flashboard riser which replaced the broad- crested weir in the C-4 canal through a 1982 permit modification) and structure 117 (discharging to the C-6 canal) were opened so that water levels in Wellington Country Place equalized with the surrounding Acme Basin B, which was controlled by the two pump stations discharging to the Refuge to the south and southwest. The evidence indicates, for at least the last ten years, the Basin B pumps have been operated to maintain water elevations of 12' NGVD in the wet season and 13' NGVD in the dry season--the same as for the County Place PUD under the 1979 permit. Under this water elevation control regime, flooding within WCPPUD was not a problem, but the water quality treatment from the Peacock Pond facility required under the 1979 permit was not being realized. The pump operation schedule under the 1979 permit did not specify a "bleed-down" mechanism. As a result, when internal stages exceeded the specified control elevation threshold, both Basin B pumps would be operated at a combined rate of 220,000 gpm until the seasonal water control elevation was again established. This operation did not take full advantage of the nutrient removal capacity of the existing system. 1989 Equestrian Estates Permit Modification In 1989, construction and operation authorization was issued for the Equestrian Estates development located within WCPPUD west of the C-4 canal. Among other things, this modification to SWM Permit No. 50-00548-S included the construction of lakes for use as wet detention ponds and a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal. However, this control structure and its associated culvert were never constructed. Peacock Pond Enforcement Proceedings Around 1997, SFWMD was informed that the Peacock Pond pump was not being operated and initially brought enforcement proceedings against Polo, which had become the owner of the property in 1993, to resume pumping into Peacock Pond. At the time, SFWMD was involved in enforcement proceedings against Polo, as owner, for unauthorized dredging and filling in Peacock Pond, and SFWMD made an incorrect assumption that Polo was the operator of the Peacock Pond facility under the 1979 permit. SFWMD subsequently realized that Acme, not Polo, was the permit holder. When Acme attempted to turn the pumps on again, Polo refused to allow Acme to do so without compensation. SFWMD then brought an enforcement action against Acme for not operating Peacock Pond in accordance with its permit. SFWMD and Acme entered into a Consent Order requiring Acme to operate Peacock Pond and the rest of the SWM system as required by the 1979 permit. Acme subsequently brought eminent domain proceedings against Polo to acquire Peacock Pond and obtained a final judgment, but the compensation required under the final judgment was prohibitive. SFWMD and the Village of Wellington then entered into a Joint Cooperation Agreement, which (among other things) required the Village of Wellington to submit an "application to modify the Peacock Pond Permit and Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond [which] must provide reasonable assurances that demonstrate that the water quality treatment, water quantity and environmental benefits associated with the Peacock Pond Permit are maintained through the modified facility or by other equivalent measures." In the meantime, SFWMD ordered Acme to set control structures 115 in the C-4 canal and 117 in the C-6 canal at 14' NGVD as required by the original 1979 permit. When this was done without operation of the Peacock Pond retention area as also contemplated and required by the 1979 Permit, the water levels caused septic tank problems to some residents in WCPPUD, leading SFWMD to issue emergency authorizations to lower the crest-settings of structures 115 and 117 to 12.5' NGVD. At those settings, water levels in WCPPUD stayed between 12' and 13' NGVD, and there have been no septic tank problems in the last two years. Specifically, measured water levels in the C-4 canal north of control structure 115 generally ranged between elevation 12' NGVD and 13' NGVD from November 2001 through October 2003, with occasional variances above or below due to drought or rain periods. Proposed Modification to Eliminate Use of Peacock Pond On May 12, 2000, Acme filed an application to modify its permit. The primary purpose of this modification was to authorize alternate SWM facilities within Basin B (primarily within WCPPUD) to maintain the water quality treatment function that was assumed would be realized by Peacock Pond in the WCPPUD permit issued in 1979. Additional components of the permit modification are: installation of a 7.8 acre flow through littoral zone within the C-2 Canal for additional cleansing of Acme Basin B water; modification of the pump operation schedule for Basin B; revision of surface water management design requirements for future development within Country Place to include additional lake acreage and littoral zones; elimination of a previously permitted (but not constructed) control structure allowing discharge from Lake No. 5 to the C- 4 Canal so that water from Lake 5 continues to drain through established canals and lakes into the C-4 Canal; modification of existing flashboard riser water control structures 115 and 117 within the C-4 and C-6 Canals to crest elevations of 12’ and 13’ NGVD, respectively, so that water will be detained upstream but water from both the eastern and western ends of the Wellington WCPPUD drain toward and into the C-4 canal during low flow; and an analysis of nutrient (and phosphorus) loading, removal and export from the Country Place system During the application process, Acme submitted detailed water quality calculations analyzing and comparing the 1979 permit, based on the land uses at that time and the anticipated phosphorous loading that would be discharged from the system, and the proposed modification with current land uses and phosphorous loading now anticipated. To support its modification application, Acme recalculated the water quality treatment currently provided by existing lakes--many of which were not planned in 1979--and other water quality treatment features in WCPPUD. Acme's calculations assumed that all land owners of undeveloped tracts in Basin B, including land owners in WCPPUD, wishing to develop their properties in the future will have to provide for adequate water quality treatment or other acceptable alternatives, as required by SFWMD regulations in place at the time the future permit applications are filed. In order to meet those requirements, future developers can either create lakes on their properties, treat their water off-site on properties such as Peacock Pond, or use other equivalent alternatives. In conformance with current SFWMD criteria, Acme’s application only considered and counted as water quality treatment features water bodies with an average width of at least 100' and a size of at least 0.5 acres. SFWMD spent an enormous amount of time reviewing the data and analyses that were submitted. SFWMD then issued numerous lengthy requests for additional administrative and technical information, requiring Acme among other things to provide water level information and perform management calculations. Acme provided necessary calculations to demonstrate that flood levels within WCPPUD would not be affected by the elimination of Peacock Pond as a water quality feature. Acme's calculations demonstrated that the water quality treatment functions currently provided by existing lakes meeting SFWMD's dimensional criteria and by on-site swales, together with the 7.8-acre off-site littoral shelf to be constructed in canal C-2, would be sufficient to replace the water quality treatment functions assumed to be provided by Peacock Pond under the 1979 permit. SFWMD issued a Staff Report on April 29, 2003, recommending approval of the application to modify the SWM permit. SFWMD found that Acme had provided reasonable assurances by Acme that the applicable permit criteria would be met. On May 15, 2003, the SFWMD Governing Board approved the Staff Report to issue a modification to SWM Permit No. 50-00548- S, Application No. 000512-12. Control Elevations and Pump Operation Schedules The proposed permit modification states that there will be a change in the permitted water control elevations and pump operation schedule within Basin B. However, as set out in Finding 17, supra, in actual practice, water elevations throughout Basin B have been maintained at the levels permitted for WCPPUD under the 1979 permit for at least the last ten years, which include the time period after the Peacock Pond pumped retention area stopped being operated as required under the 1979 permit. The proposed modifications essentially would continue the historical operation of the Acme Basin B system during this time period. In essence, the changes in Basin B outside WCPPUD will simply conform the permit conditions to actual conditions for at least the last ten years. For that reason, SFWMD and Acme has referred to modification as being only "on paper." As reflected in Finding 23(e), supra, water control structures 115 and 117 would be modified in association with this permit modification so that structure 115 (located in the C-4 canal adjacent to Peacock Pond) will have a weir crest elevation of 12' NGVD and structure 117 (located adjacent to the C-6 canal) will have a weir crest elevation of 13' NGVD. As a result, when the water level in WCPPUD exceeds 12' NGVD, it would begin to "bleed down" out of structure 115 in the C-4 canal. If the water level in WCPPUD continued to rise and reached 13' NGVD, it would begin to "bleed down" out of the 117 structure in the C-6 canal as well. Under the proposed permit modification, the pump operation schedule would be revised so that no pumping would occur until Basin B stages reached 13' NGVD. Then, the pump rate will average 30,000 gpm, which equates to a "bleed down" discharge of 20 percent of the one-inch detention above 12' NGVD per day. When the stage has been brought down to 12' NGVD, all pumping would cease. During significant storm events, when the internal stages exceed 13' NGVD, the previously permitted peak discharge rate of 220,000 gpm will be maintained. If the pumps are operated as proposed in this modification, the system will be able to take full advantage of its nutrient removal capacity. At the same time, water levels will be maintained within the ranges of historical operation over at least the last ten years. The only difference is that, except for major storm events, water levels will be allowed to "bleed down" at a slower rate. Notwithstanding these facts, Petitioners believe that control elevations in WCPPUD have always been higher than in Basin B, and are concerned that the proposed "on paper" modification is in the nature of a "smoke and mirrors" trick. Petitioners are concerned the proposed modifications will cause additional water to be detained in WCPPUD to the detriment of the equine industry there. But the evidence indicated that the their concerns are not well-taken. Under the proposed modification, there will be one inch of detention over the entire Basin B water management system between the elevations of 12' NGVD and 13' NGVD. This is the same range of elevations established for WCPPUD in the 1979 SWM permit. The calculated detention volume accounts for the volume of water which is physically accommodated in the system between 12' NGVD and 13' NGVD. There is no additional detention created in the WCPPUD system through the proposed changes. The proposed Basin B pump schedule will result in the same range of water table fluctuation as required in the 1979 SWM permit. As Petitioners' witness, Mr. Straub, testified, the system has worked well as operated for the last three years. No significant changes are to be expected as a result of the proposed pump operation schedule changes designed to achieve greater water quality treatment benefits. In combination, the modification of the pump operation schedule for Basin B and the revisions to the WCPPUD system are expected to result in an improvement in flood control with lower flood stages within WCPPUD through a more efficient water management system. Acme has demonstrated that the proposed modifications will not result in a change in actual water control elevations on Petitioners' properties; will not cause water to back up and cause flooding or septic tank problems within WCPPUD; and will comply with Florida Administrative Code Rule 40E-4.301(1)(a), (b), and (c.) The undisputed expert testimony was that Acme gave reasonable assurances that the proposed permit modification will not "lower existing water table elevations." (Emphasis added.) Fla. Admin. Code R. 40E-41.363(4). Equivalent Water Quality Treatment Provided Acme provided calculations comparing the treatment which was assumed to take place within the originally permitted surface water management system of WCPPUD (which included Peacock Pond), the treatment which is currently being provided by the existing system, and the treatment that will be provided under various assumed future scenarios. Acme demonstrated that there will be an equivalent amount of water quality treatment even though the use of Peacock Pond as a water quality retention area is being eliminated. Petitioner did not provide any contrary evidence to show that the removal of Peacock Pond reduced water quality treatment in the system. As a result, reasonable assurances were given that there will be no adverse effect on the quality of receiving waters as a result of this proposed modification. Additional Wet Detention Areas Now Exist Although the 1979 permit required only 12 acres of wet retention ponds, analysis of aerial photographs and existing permits issued after 1979 indicates that 54.4 acres of wet detention lakes meeting current regulatory criteria now exist in WCPPUD. Another 33 acres of existing wet retention areas (including canals) are present but do not meet the minimum width criteria required for wet detention ponds. Approximately another 4 acres meet the dimensional requirements but are not legally encumbered for use by Acme for water quality purposes. For example, Lakes 6 and 8 meet the dimensional criteria but are not platted as water management areas or encumbered by suitable drainage easement. A similar situation exists with Lake 9, which has been assumed to provide wet detention treatment over only 15.41 acres since the northern 2.25 acres of the 17.66-acre lake are outside the platted water management area's footprint. If all lakes, ponds, and canals within WCPPUD were counted for water quality purposes, Acme calculated that there would be enough capacity to treat approximately one inch of runoff from WCPPUD. Not counting the water bodies not meeting dimensional requirements or not legally encumbered, but assuming that future development within WCPPUD will have 13% water bodies qualifying for use as wet detention areas under current criteria, Acme calculated that there would be capacity to treat one inch runoff from current and future development within WCPPUD. (Instead of 13 percent qualifying wet detention areas, alternative equivalent water quality treatment also could be used to meet applicable water quality treatment criteria.) Planted Filter Marsh Located in C-2 Canal Provides Additional Water Quality Treatment Phosphorus loading can be described as the pounds of phosphorus which are being discharged to a water body through storm water runoff. In WCPPUD today, phosphorous loading is higher than originally anticipated and calculated when the 1979 Permit was issued due to differences in the way the land has been developed over the last 20 years. The main difference is more equestrian activity and its higher phosphorus loading than anticipated in 1979. Acme submitted detailed phosphorus loading information which is included in Exhibits 7A through 7E to the Staff Report (SFWMD Exhibit 5), comparing what the original permit anticipated to what is happening today, and what would happen with the modified system. The detailed information is summarized on Exhibit 8 to the Staff Report. To address phosphorus loading, the proposed project includes construction of a 7.8-acre filter marsh within a portion of the Acme C-2 Canal right-of-way located within Basin B about a half mile west of WCPPUD. The project will extend from the intersection of the C-2 and C-23A canals southwards approximately 6,800'. The filter marsh will treat water flowing south through the C-2 canal prior to reaching the Acme pump stations discharging into the Refuge. The existing Acme C-2 canal will be expanded to a width of approximately 80' to 130' and will incorporate a meandering 40' to 60' wide constructed and planted littoral shelf at elevation 10.0' NGVD. Adjacent to the proposed littoral zone, a 25' wide section of the canal will be excavated to an elevation of approximately 6.0' NGVD. This deeper section is proposed to prevent any reduction in hydraulic capacity of the existing C-2 Canal. The 7.8-acre area will be planted with native wetland vegetation on three centers. It is anticipated that the planted vegetation will meet or exceed the eighty percent coverage requirement within two years; however, additional plants will be installed if the area fails to meet such expectations. Monitoring will occur on a monthly basis until the filter marsh achieves a 50 percent areal coverage of desirable planted and recruited wetland vegetation. Upon attainment of the 50 percent coverage criterion, the monitoring frequency will be reduced to four times per year for a period of three years. Subsequent maintenance and monitoring events will occur semi- annually. Should exotic infestation occur, herbicide and/or hand clearing will be utilized to bring the filter marsh into compliance with desired plant specie densities. Special Condition No. 12 of the Staff Report (SFWMD Exhibit 5) requires that the Acme adhere to the filter marsh maintenance plan. The proposed littoral zone construction is expected to be initiated within six months of permit issuance and completed within six months of commencement. The pollutant loading/removal spreadsheets provide an estimate that the marsh will result in the annual removal of 33 pounds of total phosphorus. At the same time, the proposed filter marsh will add the equivalent of one-half inch of water quality treatment benefits within the entirety of Basin B. As a result, with the proposed filter marsh, Acme gave reasonable assurances that the proposed permit modification would provide "an additional fifty (50) percent retention/detention water quality treatment addition to the water quality treatment volumes required in section 5.2.1. of the Basis of Review [for projects within a Water Protection Area or Area Basin]." Fla. Admin. Code R. 40E-41.363(5). Approximately half of the proposed filter marsh will extend north of the east/west C-24 Canal, and half will extend south of it. The northern half will treat water from an area of relatively intense equestrian use just west of WCPPUD; the southern half will continue to treat water flowing through the northern half of the filter marsh. However, the southern half also will treat some water from the C-4 and C-6 canals in WCPPUD, which flows south to the C-24 and then west to the C-2. Exhibit 9B of the Staff Report (SFWMD Exhibit 5) delineates the assumed contributing area of 960 acres. BMPs Provide Improvements in Water Quality Best Management practices (BMPs) are water quality treatment operational practices to prevent pollutants from ultimately entering the receiving water body. BMPs are also often referred to as source controls. Examples of BMPs include street-sweeping and cleaning out storm gutters to control pollutants at their source. BMPs are commonly considered in ERP permitting. The Village of Wellington has mandated a BMP program in Basin B, including: an ordinance dealing with phosphorus and water quality improvement; an ordinance regulating the application of fertilizer, requiring no more than two percent phosphorus content; and an equestrian BMP requiring equestrian residuals, commonly known as manure, be collected and contained in concrete covered bins. Historically, horse manure was stockpiled in the open and exposed to rainfall. Stormwater runoff from the stockpiled manure often flowed directly into the Acme canals. Stormwater runoff from equestrian residuals has been a major contributing factor to the amount of phosphorus being discharged to the Everglades from Basin B. The Village of Wellington also is implementing BMPs for its own canal maintenance and for cleaning phosphorous-laden sediments from its canals. The calculations provided to SFWMD by Acme concerning BMPs do not assume an initial 100-percent compliance. Initially, a 20-percent compliance was assumed because the ordinances are fairly new. These BMPs were not in place when the 1979 permit was issued. Under the current application, it is expected that the BMPs throughout Basin B will significantly reduce the amount of phosphorus ultimately discharged through the two Acme pump stations to the Refuge. Although there is an increase in phosphorus loading from that anticipated in 1979, the BMPs, filter marsh, amendment to the pump operation schedule, comprehensive water quality monitoring plan, and other items in the modification offset the increase. (The modifications in the proposed permit are not designed to address the overall Basin B phosphorus problems.) Comprehensive Water Quality Monitoring Program SFWMD and the Village of Wellington have implemented a comprehensive water quality monitoring program with Basin B. This program includes existing and proposed sampling points within WCPPUD shown on Exhibits 2 and 9B of the Staff Report (SFWMD Exhibit 5). This permit modification requires that Acme continue this monitoring program as specified in Special Condition No. 11 to the Staff Report. Elimination of Existing Control Structure As stated in Finding 19, supra, a 1989 modification to the 1979 authorized construction and operation of a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal, which was never built. Instead, as shown on Exhibit 2 of the Staff Report, the existing SWM system for Equestrian Estates discharges to the C-4 Canal well to the north of the authorized control structure via a 100' wide canal. The proposed permit modification will eliminate the authorization for the Equestrian Estates control structure which was never constructed. This revision is necessary to ensure that discharge from the development will continue to occur upstream of Structure 115, as it does today, and that the on- site detention facilities within Equestrian Estates will function as modeled in the water quality analysis. Polo's Pending Application for Peacock Pond Polo has pending a separate application to SFWMD (Application No. 020215-10) requesting authorization for development of Peacock Pond as a polo field. Polo’s proposed water quality feature for its Peacock Pond polo fields development includes a lake on the north end of Peacock Pond. It appears that the lake would utilize lakes/canals 12 and 13, which are currently located at the north end and northeast corner of Peacock Pond, essentially enlarging those lakes/canals to the south and west into Peacock Pond. Polo's application is currently incomplete and fails to address a number of significant water resource issues. SFWMD mailed an initial Request for Additional Information (RAI) to Polo on March 15, 2002. Responses were due within thirty days. As of the date of the final hearing in this case, no response to the initial RAI had been submitted. Notwithstanding its pending application, Polo professes to believe that its undeveloped properties in WCPPUD are "vested," so that Polo should not be required to provide water quality treatment when developing its properties in the future. But the 1979 permit stated that it only permitted construction in certain parts of WCPPUD and that individual permit modifications would be required for the future development of additional phases. (SFWMD Exhibit 2 at p. 1; special conditions.) All "grand fathered" development already has taken place. No evidence or convincing legal argument was presented by Petitioners for the proposition that land owners seeking to develop their properties in Wellington WCPPUD now or in the future should be "vested" and thus subject to different water management regulations than other land owners seeking to develop their properties in Acme Basin B. SFWMD's Proposed Corrections to Staff Report At the Final Hearing, SFWMD suggested that two corrections be made to the Staff Report. The first would add "Section No. 20" on page 1 of the Staff Report (SFWMD Exhibit 5) to clarify the property is actually located in sections 20 and This type of change would be made administratively even without this proceeding. The other correction is proposed on page 4 of the Staff Report (SFWMD Exhibit 5), pertaining to the description of the water elevation within Basin B and Country Place, as follows: The water elevation within Basin B and Country Place was originally permitted with a wet season control elevation of 12.0' and a dry season control of 13.0' NGVD. The minimum road and finish floor elevations were established at elevation 16.0' and 17.0 NGVD, respectively. The water elevation within Basin B was permitted in 1978 with a schedule stage of 13' NGVD in the wet season and 13' NGVD in the dry season; however, the system has historically been operated with a control elevation of 12' NGVD in the wet season and 13' in the dry season. WCPPUD was originally permitted with a wet season control elevation of 12' NGVD and a dry season control elevation of 13' NGVD. The Country Place pump station discharging into Peacock Pond was to begin operation when water elevations reached 13' NGVD and discontinue when the system was drawn down to elevation 12' NGVD. The operational elevations authorized in this staff report are consistent with those authorized in 1979 for Country Place. The 1978 permit also established a minimum road grade elevation of 16' NGVD and a finished floor elevation of 17' NGVD for Basin B. The 1979 permit for Country Place established the same minimum road grade and finished floor elevations. This correction accurately describes the 1978 permit for Basin B; it is not a substantive change. These and other possible changes to the Staff Report were drafted shortly before the final hearing in the form of an "Addendum to Staff Report." Petitioners contended that this denied them due process. However, this Addendum (which was not introduced into evidence) was presented to propose corrections to minor errors in the original Staff Report and to suggest appropriate ways to address issues raised by Petitioners during prehearing procedures in this case in order to help clarify the intention of the Staff Report for Petitioners' benefit. SFWMD offered to withdraw the latter Addendum proposals if Petitioners so wished; Petitioners declined to request that these proposals be withdrawn, but none are considered to be necessary. Other Contentions Raised By Petitioners Alleged Elimination of Petitioners' Water Treatment Facilities Petitioners contended in their Second Amended Petition that the modification will cause "33 acres of previously permitted and constructed water management facilities to no longer be considered toward meeting water quality treatment." But the 33 acres referenced by the Petitioners were never counted for water quality treatment in the previous permits. Additionally, as discussed above, they do not meet the minimal dimensional criteria or have not been encumbered for water quality purposes. See Finding 41, supra. The only surface water management facility which has a change in its permitted status for water quality treatment is Peacock Pond. Future Development is Not Precluded from Proposing Alternative Water Quality Treatment Petitioners expressed a concern that the proposed permit modification would bind future development to the Acme's design assumptions--specifically, the assumption that, in order to meet SFWMD's criteria for new development, future development projects would include 13 percent lakes. This concern seems to spring primarily from the following statement on page 3 of 21 of the Staff Report (SFWMD Exhibit 5): "This permit modification requires that applicants adhere to the stated surface water management system assumptions for all future development." Reading the Staff Report as a whole, it was reasonably clear that Acme's assumption was made only for purposes of its permit modification application and would not bind future developers in WCPPUD. Rather, future applicants may propose any alternative methods that comply with Chapter 40E-4, Florida Administrative Code, and the BOR to demonstrate compliance with water quality requirements. For example, the Staff Report states on page 13: Future Country Place applicants are not precluded from proposing alternative means of treatment which can be demonstrated to provide an equivalent level of treatment. Further, the assumptions do not preclude the SFWMD from requiring additional treatment measures as necessary from an applicant to provide reasonable assurance that future projects will not cause or contribute to existing water quality problems in Basin B. The testimony of SFWMD witnesses confirmed this reading of the Staff Report. There is no need to further modify the Staff Report to allay Petitioners' expressed concern. Canals/Lakes 12 and/or 13 Not Affected Petitioners' Second Amended Petition questioned whether Acme's canals/lakes 12 and 13, which border Peacock Pond on the north and in the northeast corner, are properly located within Acme's easements. But Acme's application proposes no modifications to those canals/lakes. Not only are canals/lakes 12 and 13 not the subject of this permit modification, Petitioners introduced no competent, substantial evidence demonstrating improper placement of those conveyance features. In an abundance of caution, SFWMD suggested adding the following Special Condition Number 14 to address this issue: If a final determination is made by a court of competent jurisdiction that Acme does not own, have an easement or otherwise have the right to utilize the area where canal/lake Number 12 and/or canal/lake Number 13 is located, then within 30 days of such determination, Acme shall file an application with the SFWMD to move the canal/lake Number 12 and or canal/lake Number 13 to an area which is determined to be owned by Acme or over which Acme has an easement, or modify the surface water management system to discontinue use of canal/lake Number 12 and or canal/lake Number 13. Inclusion of this language would confirm that, if a court makes a final determination that Acme does not have the right or access to utilize Canals/Lakes Number 12 and/or 13, Acme would be required to modify the permit. While adding the suggested language to the Staff Report is appropriate, it is not necessary; reasonable assurances have been provided without any additional language that the permit criteria have been satisfied. If canal/lakes 12 and 13 should ever become unusable, thus preventing a discharge of the eastern half of WCPPUD into the C-4 canal, the drainage system could be split so that the western half discharges into the C-4 canal and the eastern half into the C-6 canal. In that case, a minor modification would be required to lower the weir at structure 117 to 12’ NGVD and the permit is modified. Mr. Higgins performed calculations to demonstrate that such a minor modification would be permittable under applicable criteria.4 Wetlands in Pod F Not Adversely Affected The Staff Report includes reference to wetlands located in the southeast corner of Pod F of WCPPUD. (Pod F itself is in the southeast corner of Section 20.) Petitioners seemed to take issue with the Staff Report's description of these wetlands. They also disputed whether Acme provided reasonable assurance that these wetlands would not be adversely affected by the proposed modifications. Specifically, Polo expressed concern that the proposed modifications would undermine a plan it has to restore wetlands in Pod F for use as mitigation for an after-the-fact permit to be issued to resolve a SFWMD cease and desist order imposed on Polo for activities in an adjacent polo field, and perhaps also as mitigation for wetland impacts by Polo and other future developers in the area. In taking these positions, Petitioners criticized SFWMD for not presenting expert testimony from a biologist. The Staff Report states that "the 3.74-acres of cypress wetland contained within Pod F" are the only other wetlands in WCPPUD besides Peacock Pond. These wetlands were described as being "in poor biological condition." Petitioners argued that the testimony of their expert supported a finding that the wetlands in Pod F actually are approximately 25 acres in size. However, her actual testimony was that her proposed wetlands restoration project was 25 acres in size. Part of her proposed restoration project includes the "vertical relocation" of higher ground now infested with melaleuca and other nuisance and exotic species. In addition, she admitted that she had not delineated wetlands in Pod F using the methodology adopted for that purpose by the State of Florida; instead, she used methodology adopted by the United States Army Corps of Engineers was used. Not only are the two methodologies different, the Army Corps methodology includes wetlands not included under the State of Florida methodology. Finally, Petitioners' expert admitted that less than 4 acres of the 25 acres included in her project area consisted of "cypress heads." Taken as a whole, the evidence did not demonstrate a need to revise the Staff Report's description of the size of the wetlands in Pod F. As for the Staff Report's description of the Pod F wetlands' "poor biological condition," this is consistent with the testimony of Petitioners' expert. She testified that the wetlands' hydrology was deficient, especially on the northern half of the restoration project area, and that the tract is "highly infested with exotic vegetation," leading to the need for restoration. The hydrology is better on the southern half of the restoration project area, where the cypress trees are healthy; but the cypress trees on the northern half of the tract are under stress, with lots of old world climbing vines on them and other infestation of exotic vegetation, including melaleuca. On site visits, the expert saw "wading birds, snakes, signs of raccoon [and n]umerous bird species." No endangered or threatened species were said to be using the tract at this time. One purpose of the restoration project would be to create better wildlife habitat. Petitioners' expert testified that if water levels were lowered in the proposed restoration project area, there could be an adverse impact on existing and planned wetlands. However, Petitioners' expert did not have evidence or information indicating historic or current water levels. Petitioners' expert also did not know whether the permit modification will lower or have any affect on the water levels in that area. Petitioners introduced neither competent evidence of current groundwater levels under the proposed wetlands mitigation project, nor competent evidence as to how the permit modification might change those groundwater levels. Acme and SFWMD presented evidence that the water levels in the C-4 and C-23 canals, directly adjacent to Pod F, will not be changed significantly as a result of the permit modification; that the proposed permit modification will have no effect on the groundwater levels in this wetland area; and that, as a result, no wetland impacts will occur from the permit modifications. Petitioners did not rebut the Respondents' evidence. As a result, Acme has demonstrated that not only groundwater and surface water flows and levels but also the value of wetland functions in Pod F will not be adversely impacted, as required by Rule 40E-4.301(d) and (g), Florida Administrative Code. The evidence was that SFWMD biologists visited the Pod F wetlands and prepared a report which formed the basis of statements in the Staff Report about the absence of wetland impacts. Given the finding that groundwater levels in the Pod F will not change, the testimony of expert biologists was not necessary. Assumed Commercial Acreage Through the testimony of Michael Nelson, Petitioners questioned a purported statement in the Staff Report that there are 24.4 acres of commercial acreage in WCPPUD. According to Mr. Nelson, there actually are only five acres of commercially zoned property in the PUD. Mr. Nelson stated that this, along with other alleged errors, undermine his confidence in SFWMD's entire evaluation of the proposed permit modification. In fact, the Staff Report, at page 8, states that "the original permit application (in 1979) included only two land uses: 935.6 acres of single family use . . . and 24.4 acres of commercial area." There was no statement that 24.4 acres is zoned commercial today. Past Violations Petitioners also assert that the proposed permit modification should be denied because Acme has not strictly abided by applicable permits. But Acme's most significant past violation was the failure to operate Peacock Pond as required by the 1979 Permit. As reflected in Findings 21 and 23, supra, the primary purpose of this proposed modification is to resolve the enforcement proceedings that arose out of the Peacock Pond violation. Acme also has been one of thousands of SFWMD permit holders who have not certified construction of their systems in conformance with the applicable permits, which is required to transfer the permit into operational status. For many years, SFWMD did not monitor permits for certification and did not enforce failure to certify permits. When monitoring and enforcement was initiated in 1995, it was found that over 12,000 permits were in violation for failure to submit the required certifications. SFWMD prioritized the missing certifications and began methodical follow-up. When SFWMD raised the issue with Acme, Acme responded, and the outstanding violations are being resolved. SFWMD saw no need to initiate formal enforcement proceedings and has been treating the outstanding violations as a "non-compliance" issue since it is a paperwork problem, not an environmental resource problem. At this time, the modifications to structures 115 and 117 in accordance with the several emergency authorizations to address septic tank problems have been certified. However, as indicated, the 1979 Permit itself cannot be certified so long as the Peacock Pond pumped retention area is not in place and operational. It is found that Acme has sufficient financial, legal, and administrative capabilities to ensure that water management modifications will be undertaken in accordance with the terms and conditions of the modified permit. (Since Acme is now a dependent special district of the Village of Wellington, the Village of Wellington actually will be responsible for installation, operation, and maintenance of these structures.) Notwithstanding the past violations, reasonable assurances have been given that Acme will comply with the terms of its proposed permit modification. Propriety of Petitioners’ Purpose Acme has raised the issue whether Petitioners participated in this proceeding for an "improper purpose," i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." § 120.595(1)(e)1, Fla. Stat. (2003). But it is found that, under the totality of circumstances, Petitioners' participation in this proceeding was not for an improper purpose, as defined by statute. Petitioners' participation in this proceeding has indeed needlessly increased Acme's cost of obtaining SFWMD's permit approval; but the evidence did not prove that this was Petitioners' primary purpose. It also is clear that Petitioners attempted to delay this proceeding through repeated requests for continuances (and other procedural and evidentiary objections) and that, while they usually based their requests for continuances in part on the alleged need for more time for more discovery, they failed to pick up voluminous copies of requested discovery documents and complained about how much money they had already spent on discovery. Nonetheless, it is found that Acme did not prove that Petitioners' primary purpose for participating in this proceeding was to delay the proceeding. It seems reasonably clear that, had Petitioners retained a competent expert engineer to evaluate its case, the expert probably would have advised Petitioners that they would not be able to successfully challenge SFWMD's proposed agency action. For that and other reasons, a reasonable person would not have raised and pursued some of the issues raised by Petitioners in this proceeding. But it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose.
Findings Of Fact By application No. 2-7738 filed on June 29, 1981, Aquarina has requested a withdrawal for consumptive use of ground water in Brevard County in the amount of 468,000 gallons per day (850,000 gallons per day maximum) of raw water (before processing). The purpose of the proposed consumptive water use is a proposed development of 196+- acres in Brevard County located between Mullet Creek, a tributary of the Indian River and the Atlantic Ocean in South Brevard County. It is located on the barrier islands separated from the mainland by the Indian River, and is 13 miles south of Melbourne and 5 miles north of Indian River County. Aquarina proposes to develop a condominium community with a projected population of 3,500 persons consisting of 1,600 residences, a commercial area, and 500 hotel rooms. An on-site well field is proposed as well as reverse osmosis water treatment and wastewater treatment plants which are to be constructed near the southern boundary of the development. Two wells with a capacity of approximately 500 gallons per minute are proposed to be constructed and both will withdraw water from the Floridian Aquifer for conversion by reverse osmosis treatment into potable water. 3/ In addition to potable water supply requirements for the development, although part of the requirement will be met by wastewater, there is a requirement for irrigation water for landscaping. The Aquarina site has been zoned Planned Unit Development (PUD) since 1973 and the proposed densities are in accordance with those established in the Brevard County Comprehensive Plan and Zoning Ordinance. As a result of an earlier application of Aquarina for consumptive use, a temporary water use permit was granted by the District to allow Aquarina to drill test wells for aquifer testing before the present application for water use would be considered by the District. This earlier application is not now at issue. Pursuant to this temporary permit, Aquarina conducted an aquifer test program. During the first test, well #1 (the northernmost well) was utilized as a monitor or observation well for the test conducted on well #2, and an existing mosquito control well was also used as an observation well. A two-step pump test was run for 24 hours, with drawdown readings recorded at all three wells. The pump test analysis showed that the Floridian Aquifer transmissivity (the measure of the ability of the aquifer to transmit water) ranged from 173,000 gallons per day per foot at the observation wells to 87,000 gallons per day per foot at the discharge well. The total depth of these two wells was #1 -- 425 feet and #2 -- 412 feet. Following submission of the results of the first aquifer test and the application for consumptive use filed on June 29, 1981, the District staff prepared a Technical Staff Report (TSR) for the benefit of the District Governing Board based upon the two wells drilled pursuant to the temporary permit. However, because the proposed withdrawals would be from the Sebastian Inlet fresh water lens which is a finite potable source of water rapidly being depleted by existing domestic uses and mosquito control wells, the TSR recommended, among other things, that the two wells be deepened to a depth below the Sebastian Inlet fresh water lens and cased to the depth of 450 feet to insure that withdrawals occur from expected saltier water below the lens. Also, the District staff recommended that three mosquito control wells on the Aquarina property be properly plugged to eliminate fresh water loss from the lens due to the following wells. The three flowing mosquito control wells on the site were estimated to have been flowing at 432,000 gallons per day. The Sebastian Inlet fresh water lens from which Aquarina initially intended to withdraw its water appears as two underground bubbles or lenses of water fresher than the surrounding connate or saltier water. The lenses apparently are a result of stratigraphic entrapment of fresh water due to geological formations and are not being recharged with fresh water. When withdrawals are made from these lenses, salty or connate-water fills the void left by the fresher water following withdrawal. The two lenses were substantially larger during recent times but, because of many domestic uses as well as mosquito control wells which have been flowing freely, the reservoirs have shrunk significantly. Based upon present usage, the north portion of the lens will last until approximately the year 2000 at current rates of consumption and the south portion of the lens will last until approximately the year 2030 at current rates of consumption. Because of the impact on the Sebastian Inlet lens, the staff of the District could not recommend approval of Aquarina's application unless Aquarina agreed to three main conditions: The Applicant would case its production wells to 450 feet below the surface, to avoid interference with the freshwater reservoir. (Because of the combined factors of upward artesian pressure in the aquifer, the greater density of salt or connate water in relation to fresh- water, and the known range of transmis- sivity and storage factors for that portion of the aquifer [an underground waterbearing stratum or group of strata] in that geographical area, connate water would flow upward and from the sides into the area of the Applicant's withdrawal of water from beneath the lens, and the lighter, fresh water of the lens above would remain there, free from interfer- ence by the withdrawal.) The Applicant would have to plug all the preexisting mosquito control wells on the development site. The Applicant would have to undergo early monitoring of the chemical quality of this water and the water within the fresh water reservoir. As a result of Aquarina's agreement to meet these three conditions, the Technical Staff Report (TSR) issued by the District on August 20, 1981, recommended approval of the application with the addition of the above conditions. During the course of (1) deepening of well #2 to a depth of 650 feet and backplugging to 595 feet; (2) casing it to a depth of 450 feet; (3) performing a second aquifer test on the deeper well; and (4) evaluating the proposed withdrawals, Aquarina's consultants came to the following conclusions which were unrebutted by other evidence submitted at the final hearing: During the process of deepening well #2 to 650 feet, later backplugged to 595 feet, the consultants discovered an aquitard or confining layer made up of small clay-sized particles which retard the vertical flow of water at a depth of 440 to 450 feet. This well was cased to a depth of 450 feet or to the top of the aquitard. Before reaching this layer, the quality of water was generally declining with increasing depths. Below this layer, the quality of water improved to a depth of approximately 550 feet and the transmissivity was greater below the aquitard than above. Further, that same aquitard was also discovered in a mosquito control well on site when it was logged. Sufficient quantities of treatable water are available from the deepened well to supply the needs of the Aquarina project. That in both the June, 1991, and the subsequent aquifer test, there appeared to be interferences from other sources which impact the potentiometric pressure levels of the wells on the Aquarina site. These were identified as the South Brevard Utilities Corporation (SBUC) and nearby domestic well users. That the results of the June, 1981, test and computer modeling were that the impact of the proposed Aquarina with- drawls on existing nearby wells drilled to the shallower level was between a one to two foot decline in the potentiometric pressure. The average potentiometric pressure in the local aquifer is 27 feet above National Vertical Geodetic Datum (NVGD) or Mean Sea Level (MSL). These existing nearby wells were identified to be the SBUC well approximately 2,400 feet away from Aquarina and those wells of nearby homeowners in the same vicinity as the SBUC well. That flownet analysis (EPA computer model) of the results of the second aquifer test program revealed that approximately 6% of the water obtained from the deepened well would come from the layers above the aquitard, i.e. connate water and the Sebastian Inlet fresh water lens. Based on this model, the effect on water quality for existing users of the proposed withdrawals was concluded to be insignificant and known existing users would not be harmed by the proposed withdrawals. The aquitard was observed in the Aquarina deepened well and the observation mosquito control well which was logged. It was impossible to state definitely that the observed aquitard in the area was a continuous geologic feature. Partly due to the proximity of the aquitard and the depth of the wells in relation to the Sebastian Inlet fresh water lens, the conclusion was reached that effect on water quality of the Aquarina withdrawals would be insignificant. There is no fresh water recharge into the Sebastian Inlet fresh water lens, but there is a continuous pressure con- nection throughout the Florida aquifer in the area. Any replacement of water discharged from the Sebastian Inlet fresh water lens or the lower zones will be of saltier, less potable connate water. It is not understood how long the part of the aquifer below the aquitard (lower zone) will continue to be a significant source of fresh water due to insufficient data. The three mosquito control wells on the Aquarina site are flowing when uncapped or unplugged an estimated 432,000 gallons per day while the wells in the northern sector of the Sebastian Inlet fresh water lens (below where Aquarina is located) flowed at an approximate rate of 2.6 MGD. These withdrawals by the mosquito control wells are primarily from the Sebastian Inlet fresh water lens and are the major cause of premature depletion of the lens. The testimony and the data presented at the hearing demonstrated that the Applicant has met its burden to show by a preponderance of the evidence that the proposed withdrawals by Aquarina will not significantly affect either the quality or quantity of water available to neighboring water users. This appears to be the case regardless of whether the aquitard testified to be about ten feet thick exists and whether the leakance value of less that 6% exists in the aquifer between the point of the Aquarina withdrawals and neighboring users. Data which may be generated subsequently may lead to a different conclusion, but this finding is based on the data presented to the Hearing Officer by the parties at the hearing. 4/ Aquarina has agreed to the following permit condition: (b) The applicant would have to plug all the preexisting mosquito control wells on the development site. The proper plugging of the mosquito control wells on the Aquarina site will save approximately 432.000 GPD of water from the finite Sebastian Inlet lens. This condition was agreed to independently of the contribution by Aquarina of $25,000 to the well plugging program with the District and Brevard County which has as its goal, the plugging of all mosquito control wells in the area. Without the plugging of the mosquito control wells, it is estimated that the northern reservoir of the lens would be depleted by the year 2000, and the southern reservoir by the year 2030. It was also estimated that the plugging of the mosquito control wells would prolong the life of the fresh water reservoirs by over 100 years. Furthermore, by plugging all the mosquito control wells, approximately 6,700,000 gallons per day will be saved from the entire lens area. The basin in which Aquarina is located is in an overdraft condition with more water withdrawn than is presently being recharged. However, the Aquarina project will bring about a net improvement in the situation due to the mosquito control well plugging program imposed as a condition of the permit. Under the sites current PUD zoning, a density of 12 dwelling units per acre is permitted. The current classification of the property in the Brevard County Comprehensive Plan is "urbanizing." Under that classification, the Applicant could seek a rezoning of the property from PUD to single family attached residential. Such a reclassification would avoid the requirements of Chapter 373, Florida Statutes, by allowing each of the 196+- dwelling units to have its own well with a per unit consumptive use below the quantity required to activate Chapter 373, Florida Statutes. Nothing would prevent any of the residential wells from tapping the fresh water lens presently used by the Petitioners in a total amount exceeding that sought in the instant application. Given the designated land use of the Aquarina site, the controlled withdrawal from one or two points within the development is a preferable alternative to the unregulated development and water use which in all probability would follow from the denial of this permit. In large measure, the District's options regarding this site and its attendant consequences have been predetermined by land use decisions made by local officials. Under these circumstances, the District has been required to choose among a set of options which do not include an option for controlled and limited growth directly tied to availability of fresh water resources envisioned by the Petitioner. The choice which the District made in this case, although obviously not ideal, is the best among the presently available alternatives.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent St. Johns River Water Management District grant the requested consumptive water use permit to the Applicant Aquarina Developments, Inc., subject to the conditions contained in the staff's TSR, as corrected and amended on March 25, 1982, which include, but are not limited to: The maximum daily withdrawal shall not exceed 9.765 million gallons per day for five years. The maximum annual withdrawal shall not exceed 171 million gallons for five years. The existing ten inch public supply wells shall be lined or cased to a depth of 450 feet below land surface to insure with- drawals from below this depth. The construction standards used to perform these well modifications shall be accomplished through all appropriate permitting regulations and conform to existing construc- tion standards as stated in Chapter 373, Florida Statutes (F.S.) and Chapter 40C-3, Florida Administrative Code (F.A.C.). That any subsequent Public Supply well or wells constructed for this project be cased to an equal depth. That all mosquito control wells (3) within the property boundaries of the permittee be plugged with neat cement grout from bottom to top as specified in Chapter 40C-3, F.A.C. Chloride concentrations and dissolved solids in water samples from each water supply well shall be measured monthly, and results shall be submitted within 60 days of measure- ment to the St. Johns River Water Management District. A complete water quality analysis including Ca, Mg, Na, K, Cl, S04, HC03, pH and Co3 shall be performed on samples collected in May of each year. The permittee shall maintain withdrawal records showing daily withdrawals of raw (pre-treatment) water for each year ending May 31. These records shall be submitted on a quarterly basis on District Form En-3. Nothing in this permit shall be construed to limit the authority of the St. Johns River Water management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or formulate a plan for implementation during periods of water shortage pursuant to Section 373.246, Florida Statutes. District representatives may visit the site to insure compliance with conditions of this permit following advance notifica- tion of the permittee of the time of visit. The water conserving techniques and methods as outlined in the July 30, 1981 letter to the District from Ed Fleis, P.E., to Thomas K. Ziegler, TSR Exhibit 10, shall be implemented and included throughout all phases of this project. Further, should the replace- ment of any fixtures or appliances be required during the life of this permit, water conserving fixtures equivalent to those originally specified shall be installed. DONE AND ORDERED this 6th day of August, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
The Issue The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.
Findings Of Fact Based upon all of the evidence, the following supplemental findings of fact are determined: Background Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below. A Brief Description of the Development and System The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes. The Wastewater Treatment Plant The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to: construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets 1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to 0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake. Adequacy of Separation Between Plant and System Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows: Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions. The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground. The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields. The Computer Models As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow. The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert. Water Quantity Impacts There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows. Water Quality Impacts The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall. Adverse Environmental Impacts There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers. Miscellaneous During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of March, 1991.
The Issue The issue to be determined in this case is whether the City of Tarpon Springs (“City”) is entitled to a industrial wastewater facility permit for its proposed discharge of demineralization concentrate into the Gulf of Mexico adjacent to Pasco County, Florida.
Findings Of Fact The Parties Henry Ross is a resident of Tarpon Springs. In his petition for hearing, he alleges that he is a recreational fisherman and a "consumer of fish taken from the area" where the proposed wastewater discharge would occur. He presented no evidence at the final hearing to prove these allegations. Neither the City or the Department stipulated to facts that would establish Ross's standing. The City of Tarpon Springs is a municipality in Pinellas County and the applicant for the industrial wastewater permit that is challenged by Ross. The Department is the agency charged by law with the duty, and granted the power, to regulate the discharge of pollutants into waters of the State. The Proposed Permit - General Due to the cost of obtaining potable water from Pinellas County Utilities, the City decided to look for another source of drinking water. In February 2004, an alternative water supply plan was developed by the City’s Office of Public Services which analyzed potable water supply options. It determined that the withdrawal and treatment of brackish groundwater represented the best option for the City. The proposed permit authorizes the City to discharge industrial wastewater into waters of the State. The wastewater is demineralization concentrate, which is produced when RO technology is used to remove salts from brackish water to convert it to potable water. The wastewater would be produced in conjunction with the operation of a not-yet-constructed WTP that would supply public drinking water to the residents of the City. The City must also obtain a consumptive use permit from the Southwest Florida Water Management District for the proposed withdrawal of groundwater. Whether the Town is entitled to a consumptive use permit is not at issue in this proceeding. The industrial wastewater permit would authorize a maximum daily discharge of 2.79 million gallons per day ("mgd") of RO concentrate. The initial operation of the WTP, however, is expected to discharge 1.05 mgd. The RO concentrate would be transported via a force main from the WTP in the City to an outfall in Pasco County. The outfall would discharge the wastewater into a canal which is already being used for the discharge of cooling water from Progress Energy Florida, Inc.’s Anclote Power Generation Facility. The outfall would be 50 feet north of the point in the canal where Progress Energy is required to demonstrate compliance with its own permitting requirements, so as not to interfere with Progress Energy's ability to demonstrate compliance. There is a floating barrier in the channel north of the proposed point of discharge, and a fence along the side of the canal, to prevent swimmers, boaters, and persons on foot from getting near the Progress Energy power plant. The floating barrier and fence would also prevent swimmers, boaters, or pedestrians from reaching the proposed discharge outfall and the area of the canal where the discharge will initially mix. After being discharged into the canal, the wastewater would become diluted and flow northward, out of the canal and into the open waters of the Gulf. The prevailing currents in area would most often force the wastewater south toward Pinellas County and the mouth of the Anclote River. To determine the characteristics of the wastewater, the City's consultants collected water from the three proposed well fields for the new WTP and ran the water through a small, pilot-scale RO unit to generate an RO concentrate that is representative of the proposed RO discharge. It was determined that eight constituents of the wastewater would likely be present in concentrations that would exceed applicable state water quality standards: aluminum, copper, iron, gross alpha (a radioactivity measurement), total radium, selenium, nickel, and zinc. The Mixing Zones The Department may authorize mixing zones in which a wastewater discharge is allowed to mix with the receiving waters. See Fla. Admin. Code R. 62-4.244. Within the mixing zone, certain minimum water quality criteria must be met. At the outer boundary of the mixing zone, the applicable state water quality standards must be met. In this case, the water quality standards for Class III marine waters are applicable. The City's consultants analyzed the wastewater, receiving waters, and other factors and used an analytical model to simulate a number of mixing scenarios. In cooperation with Department staff, a separate mixing zone was established for each of the eight constituents that are not expected to meet water quality standards at the outfall. The largest mixing zone, for copper, is 1,483.9 square meters. The smallest mixing zone, for nickel, is 0.7 square meters. The mixing zones are conservatively large to assure sufficient mixing. Under most conditions, the mixing is expected to occur in a smaller area. Toxicity Analysis Among the minimum criteria that must be met within a mixing zone is the requirement to avoid conditions that are acutely toxic. See Fla. Admin Code R. 62-302.500(1)(a). A wastewater discharge is tested for potential acute toxicity by exposing test organisms to the undiluted discharge and determining whether more than 50 percent of the organisms die within a specified time period. The test organisms, mysid shrimp and silverside minnow, are sensitive species. Therefore, when a discharge is not acutely toxic to these organisms, it can be reasonably presumed that the discharge would not harm the native organisms in the receiving waters. The acute toxicity test for the proposed RO concentrate indicated zero toxicity. The Department requested that the City also analyze the potential chronic toxicity of the proposed discharge. A wastewater discharge shows chronic toxicity if exposure to the discharge adversely affects the growth and weight of the test organisms. The tests performed on the representative discharge showed that the proposed discharge of RO concentrate would not create chronic toxicity in the mixing zones. Petitioner’s expert witness, Ann Ney, did not review the toxicity analyses or other water quality data that were submitted to the Department by the City. However, she expressed a general concern about a salty discharge that could create stratification in the canal with higher salinity at the bottom of the canal that might be hypoxic (little or no dissolved oxygen). The more persuasive evidence shows that salinity stratification, or a hypoxic condition, is unlikely to occur. The proposed permit requires the City to conduct quarterly chronic toxicity tests. The permit also requires the City to periodically test the water and sediments for any unexpected cumulative effects of the discharge. Evaluation of Disposal Options Florida Administrative Code Rule 62-620.625(6) requires that an applicant for a permit to discharge demineralization concentrate must investigate disposal options potentially available in the project area. The City evaluated blending the discharge concentrate with the City's re-use water irrigation program or with the City’s domestic wastewater discharge into the Anclote River. The RO concentrate was too salty for irrigation use and there was an inadequate volume of domestic wastewater available throughout the year. In addition, the Anclote River is an Outstanding Florida Water and, therefore, is afforded the highest water quality protection under Department rules. See Fla. Admin. Code R. 62-4.242(2). The City also looked at underground injection but that was economically unreasonable and there was concern about upward migration of the discharge. It was economically unreasonable to discharge the concentrate farther out into the Gulf. Anti-degradation Analysis For a proposed new discharge, a permit applicant must demonstrate that the use of another discharge location, land application, or recycling that would avoid the degradation of water quality is not economically and technologically reasonable. See Fla. Admin. Code R. 62-4.242(1)(d). As discussed above, the City investigated other disposal options, but they were not economically or technologically reasonable. An applicant for a permit authorizing a new discharge must demonstrate that any degradation is desirable under federal standards and under circumstances that are clearly in the public interest. See Fla. Admin. Code R. 62-302.300(17). In determining whether a proposed discharge is desirable under federal standards and under circumstances that are clearly in the public interest, the Department is required by Rule 62-4.242(1)(b) to consider the following factors: Whether the proposed project is important to and is beneficial to public health, safety or welfare (taking into account the policies set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. The proposed project is important to and is beneficial to public health, safety or welfare because it would provide drinking water for the public. In addition, the treatment and use of brackish groundwater converts otherwise unusable water into a valuable resource. The use of brackish water avoids the use of water in the surficial aquifer that is used by natural systems, such as wetlands. The Florida Legislature has found that the demineralization of brackish water is in the public interest, as expressed in Section 403.0882, Florida Statutes (2010): The legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water by-product treatment technology, sound waste by-product disposal methods, and regional solutions to water resources issues. The proposed discharge would not adversely affect conservation of fish and wildlife. Because the discharge is not toxic to sensitive test organisms provides reasonable assurance that the native fish and other aquatic life would not be adversely affected by the discharge. The only identified threatened or endangered species that frequents the canal waters is the endangered Florida Manatee. Manatees use the canal because of its relatively warm waters. Manatees come to the surface to breathe and they drink fresh water. There is no reason to expect that a manatee moving through the mixing zones would be adversely affected by the RO concentrate. The Florida Fish and Wildlife Conservation Commission, which has primary responsibility for the protection of endangered and threatened species, did not object to the proposed permit. Manatees and many other aquatic species use seagrasses as food or habitat. There are no seagrasses in the area of the canal into which the RO concentrate would be discharged, but there are dense seagrass beds nearby. The proposed discharge would have no effect on the seagrasses in the area. The proposed discharge would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Because the proposed discharge is non-toxic and would meet Class III water quality standards before reaching the closest areas where humans have access to the canal and Gulf waters, there is no reason to believe that the proposed discharge would be harmful to humans. The proposed discharge would not adversely affect recreational activities, such as swimming, boating, or fishing. Petitioner presented the testimony of two fishermen about fishing resources and water flow in the area, but no evidence was presented to show how the proposed discharge would reduce marine productivity. Petitioner contends that the proposed discharge would adversely affect the Pinellas County Aquatic Preserve. However, the aquatic preserve is two miles away. The proposed discharge would probably be undetectable at that distance. It would have no effect on the waters or other resources of the aquatic preserve. With regard to the requirement that the proposed discharge be consistent with an adopted and approved Surface Water Improvement and Management Plan for the area, there is no such plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department issue a final order determining that Petitioner lacks standing, and approving the issuance of the industrial wastewater facility permit to the City. DONE AND ENTERED this 16th day of December, 2010, 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 16th day of December, 2010. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas J. Trask, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Henry Ross 1020 South Florida Avenue Tarpon Springs, Florida 34689 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue In their Prehearing Stipulation, the parties described the nature of the controversy as follows: This matter involves a challenge to a Technical Staff Report and Recommendation made by Respon- dent's staff on a consumptive use permit applica- tion for water submitted to Respondent by Petitioner. Petitioner owns a recreational facility where water is being used. The Staff Report recommends that certain conditions be imposed upon the permit proposed to be issued to Petitioner placing limitations on the amount of water which may be consumed by Petitioner and requiring Petitioner to report on numbers of persons utilizing Respondent's facility. In that same stipulation, the parties described their respective positions as follows: Petitioner's Position: The present use of water at the Wekiva Falls Resort is a reasonable beneficial use which should not be reduced or limited by permit conditions. The standpipes through which the water flows are not wells and therefore should not be subject to any regulation by Respondent. The placement of the standpipes did not increase the flow of water but rather captured the already existing flow from natural springs which existed on the property prior to the placement of the standpipes. Petitioner feels his use does not come within the permitting power of Respondent, and that if it does, its use should be allowed to continue without any reductions in flow. Respondent's Position: After review of Petitioner's consumptive use permit application for the use of water emanating from two standpipes, one twenty-four (24) inches in diameter and the other fourteen inches in diameter, the staff of the District determined that the standpipes were wells subject to the District's regulation under Chapter 40C-2, Florida Administrative Code, and recommended approval of the permit with certain conditions requiring a reduction in flow during certain low or non-use periods. This matter arose from Petitioner's application to the District for a consumptive use permit that would allocate water to the Petitioner from water flowing from a 24-inch metal pipe and a 14-inch metal pipe for use at Petitioner's campground. The District maintains that, not only is the water that is drawn from the metal pipes and used at the campground regulated pursuant to Part II of Chapter 373, Florida Statutes, but also that the remaining water that flows from the two metal pipes and is used by Petitioner to maintain a swimming area is regulated pursuant to Part II of Chapter 373, Florida Statutes. The Petitioner has not applied for an allocation of water for maintaining the swimming area. Even though the Petitioner has not applied for such an allocation, the use of water for maintaining the swimming area has been evaluated because the Petitioner maintained that, even if the water used to maintain the swimming area is regulated pursuant to Part II of Chapter 373, Florida Statutes, the flow of water from the metal pipes should not be restricted in any fashion from the ongoing flow. Thus, the issues presented are whether the application that was applied for should be granted, whether the Petitioner has to apply for an additional allocation in order to continue using water to maintain the swimming area, and what, if an additional allocation is sought, the permit would be. In their Prehearing Stipulation the parties also agreed to the following issues of law. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding subject to Section 120.57(1), Florida Statutes. To the extent the standpipes located on Petitioner's property are determined to be wells, they are governed by and subject to the provisions of Chapter 373, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The procedural rules which apply to this proceeding are Chapters 40C-1, 28-5, and 22-I, Florida Administrative Code. The parties also agreed to the following as being the ultimate issues of fact which remained to be litigated. Whether the two standpipes constitute an excavation that was drilled, cored, washed, driven, dug, jetted, or otherwise constructed with the intended use of such excavation to be for the location, acquisition, development, or artificial recharge of water. Whether the continued use by Petitioner of water at pre-permit levels is a use of water in a quantity necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest. Whether the continued use of water by Petitioner at pre-permit levels would increase the danger of saline water encroachment. Whether a reduction in flow of water will result in a reduction in water quality for the uses made of the water by Petitioner. Whether a reduction in flow of water would have adverse impacts on the quality of water in the Wekiva River. Subsequent to the hearing, a transcript of the proceedings at hearing was filed on December 22, 1986, and, pursuant to request of the parties, they were allowed 30 days from that date within which to file their proposed recommended orders. Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The proposed recommended orders have been carefully considered and a specific ruling on each proposed finding of fact submitted by each party is contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Findings based on admissions in prehearing stipulation Petitioner is a private individual who owns and does business as the Wekiva Falls Resort in Lake County, Florida. Respondent, a special taxing district created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part II of Chapter 373, Consumptive Uses of Water, specifically Sections 373.219 and 373.223, Florida Statutes, and Chapter 40C-2, Florida Administrative Code. The District is the agency affected in this proceeding. The District has assigned Petitioner's permit application, which is the subject of this proceeding, the permit number 2-069-0785AUS. On September 4, 1985, Petitioner submitted to Respondent a CUP application number 2-069-0785AUS to withdraw water from two wells, one 14 inches in diameter and the other 24 inches in diameter, located on Petitioner's property in Lake County, Florida. The water which flows from the two standpipes flows through a creek which was improved by Petitioner, said creek having as its terminus the Wekiva River. The standpipes were put in place by Petitioner or his authorized agents or employees in 1972. The area of the Wekiva River into which the creek leading from the two standpipes flows has been designated as an aquatic preserve and an "Outstanding Florida Water." On May 23, 1986, Respondent's staff gave notice of its intent to recommend approval with conditions of Petitioner's CUP application number 2-069- 0785AUS. Petitioner's Petition for Administrative Hearing was timely filed with the District. Findings based on evidence at hearing Petitioner filed his CUP application on September 4, 1985, one week in advance of the September 11, 1985, deadline for existing users of water to file applications which would establish and protect their existing user status. Petitioner's application requests an allocation of 31.7 million gallons per year (mgy) for the following uses: 8 per cent for cooling and air conditioning, 3 per cent for outside use, and 89 per cent for commercial and industrial use. Petitioner has made no application for any allocation of water for water based recreation. The Wekiva Falls Resort property consists of approximately 140 acres stretching 4800 feet in length between Wekiva River Road and the Wekiva River. The property is located along the Wekiva River between State Road 46 and the Orange County, Florida, line. Seminole County, Florida, is on the opposite side of the Wekiva River from the subject property. Petitioner purchased the subject property in 1968. At that time it was a heavily overgrown rural tract. Petitioner observed a stream which came under Wekiva River Road, passing through seven culverts, and running the length of the property to the Wekiva River. This stream carries runoff from Petitioner's property as well as runoff from areas west of the property on the opposite side of Wekiva River Road. At a point approximately midway between the Wekiva River and Wekiva River Road, along the stream, a depressional area was located by Petitioner, through which the stream flowed. Petitioner observed that more water was flowing downstream from the depressional area than upstream. Petitioner's property is located in an area of natural artesian flow where springs or seeps are not uncommon. Because the area in which the subject property is located is one of natural artestian flow, it is likely that a surficial seep of water existed in the depressional area which generated a flow of water. None of the available geological or hydrogeological information or data would indicate the existence of a spring or springs on this site prior to the drilling undertaken by Petitioner. At the time the first well was drilled by Dick Joyce Well Drilling, Inc., no spring was observed by the driller. Further, in conversations with the Executive Director of the District in 1974, no mention was made by the Petitioner of the existence of a spring or springs at the site prior to drilling. On July 17, 1969, Petitioner measured the stream flow and calculated same to be 23.97 cubic feet per second. The methodology utilized by Petitioner in measuring the stream flow in its natural state was an accepted methodology. However, this measurement did not discriminate between the water flowing into the depressional area from the stream carrying runoff from the lands upstream of the depressional area and the water originating from surficial seeps in the depressional area. Thus, this amount cannot be utilized or relied upon as a measurement of the amount of water emanating from seeps in the depressional area before drilling was undertaken by Petitioner. Nevertheless, other evidence indicates that the total volume of water flowing from Petitioner's property into the Wekiva River was probably substantially the same both before and after the installation of the two wells on Petitioner's property. In any event, the installation of Petitioner's wells does not appear to have increased the flow of the Wekiva River downstream of where Wekiva Canoe Creek discharges. In undertaking the development of his property as a resort/campground/recreational vehicle facility, Petitioner dug out the depressional area and used a dragline to open up the creek from the depressional area downstream to the Wekiva River. At a point approximately 200 feet west of the Wekiva River, Petitioner dredged a wide area to construct a marina with access through the creek to the Wekiva River. In an effort to obtain a controlled flow of water, Petitioner contracted Dick Joyce of Dick Joyce Well Drilling Inc. to drill a well fourteen inches in diameter at a site along the bank of the depressional area designated by Petitioner. The well was drilled by Joyce in August of 1972. The well was drilled using a cable rig to a depth of 107 feet, with casing being driven to a depth of 58 feet. The drilling procedure excavated a hole in the ground, penetrated rock, and resulted in the flow of ground water to land surface. The top of the 14-inch well extends 4 to 5 feet above land surface. In a further effort to obtain a controlled flow of water, Petitioner subsequently contracted Central Florida Drillers to drill a second well, twenty- four (24) inches in diameter. This well was drilled in 1973 along the bank of the depressional area, at a spot identified by Petitioner, in the same general vicinity as the previously drilled 14-inch well. The well was also drilled using a cable rig to a depth of 120 feet with casing being driven to a depth of 84.7 feet. The drilling procedure excavated a hole in the ground, penetrated rock, and resulted in the flow of ground water to land surface. The top of the 24-inch well extends 5 feet above land surface. Central Florida Well Drillers Inc. prepared and maintained a driller's log of the 24-inch well, recording the composition of the stratigraphic column through which the drilling equipment passed. The lithology shown in the stratigraphic column is indicative of the geology normally found in a well drilled in this geographical area. The log shows penetration of the normal stratigraphic column for this area and does not show a spring bore that had been filed in by materials at an earlier date. The drilling of the two wells by Petitioner substantially altered the natural conditions on the property as they existed prior to 1972. The top of the Floridan aquifer in the geographical region in which Petitioner's wells are located is encountered at depths ranging from 50 to 100 feet below land surface. The amount of water flowing from the wells has been variously reported and calculated since the wells were installed. Petitioner's promotional materials, which bill the resort as home of the "world's largest flowing well," asserts the maximum free flow capacity to be 72 million gallons per day (mgd). At another point in time, flow from the larger well was said to be 28.8 mgd and the flow from the smaller well 11.5 mgd. Respondent's staff, in preparing its technical staff report, calculated the total flowage from the two wells to be 18 mgd. In his application for a permit to operate a public bathing facility filed with the Florida Department of Health and Rehabilitative Services (HRS), Petitioner indicated the total flowage to be 16 mgd. For purposes of the determination to be made by this Order, the parties stipulated at the hearing to a total flowage figure of 12.47 mgd. Petitioner has operated and continues to operate the facility as a campground and water based recreational site. The central theme of the use of Petitioner's property is the recreational use of water. The water based recreation includes swimming, boating, tubing, and fishing, and is centered around the two flowing wells. The designated swimming area extends from a retaining wall located just west of the westernmost of the two wells to a footbridge which crosses Canoe Creek west of the Marina. The supply of water for recreational use comes primarily from the two wells. The stream which originally existed on the property and which carries runoff from the more western part of Petitioner's property and from off-site enters the designated swimming area at the retaining wall on its westernmost edge. The water which comes from this stream and which is introduced into the western end of the swimming area contains high levels of bacteria and coliforms. Between the hours of 6:00 a.m. and 6:00 p.m., Petitioner operates a sump pump which redirects this high coliform water eastward around a major portion of the swimming area to a point still within the swimming area. For the remaining twelve hours per day, this high bacteria, high coliform water is allowed to flow directly into the swimming area. Petitioner could reduce the level of bacteria and coliforms in the swimming area by simply operating the sump pump for 24 hours a day and/or introducing the water so pumped back into Canoe Creek at a point further downstream east of the designated swimming area. In addition, runoff from a storm drain which was constructed by Lake County, Florida, as a result of an easement granted to them by Petitioner, enters Canoe Creek at a point downstream from the wells but east of the footbridge, within the designated swimming area. When stormwater is conveyed through this storm drain, it also introduces coliforms into the swimming area at the point where the storm drain intersects Canoe Creek. The gate valves on each of the two wells are frozen in a completely open position. The wells are presently flowing at maximum capacity 24 hours a day without regard to whether the facility is being used or not. Petitioner does not presently have the capability to incrementally control the flow of water, short of utilizing a plug to completely shut off the flow of water from one or the other or both of the two wells. Petitioner does, however, have the capability of installing a hydraulic cylinder remote control system in the wells which would allow him to control the flow of water incrementally from the wells via a phone line. The use of Petitioner's facility varies by season, month, day of the week, and time of day, and according to weather conditions on a particular day. Although Petitioner did not have records available showing the number of persons utilizing a particular part of the facility for a particular purpose on a particular day, most of Petitioner's revenue, at least during the summer months, is generated by day use swimmers and picnickers. The swimming facility is most heavily used during daylight hours in the summer months. More customers use the swimming facilities on Saturday and Sunday than during the weekdays. Use is lower during the winter months and during times of inclement weather such as cloudy or rainy days. The evidence fails to show the average number of bathers who use Petitioner's facilities at any particular season or during any particular weather conditions. Petitioner holds a Swimming Pool-Bathing Place Operating Permit for the swimming area issued by the Florida Department of Health and Rehabilitative Services pursuant to Section 10D-5.120, Florida Administrative Code. Responsibility for enforcement of these administrative regulations is with the Lake County, Florida, Public Health Unit. Petitioner's permit allows him to have a maximum swimming pool population of 2000 bathers per day, but there is no evidence that he has ever had that many bathers on a single day since he received the permit. There are two primary water quality parameters which Petitioner is required to maintain within the swimming area, which are delineated in Rule 10D- 5.120, Florida Administrative Code. The first is a flow-through requirement of 500 gallons of water per anticipated bather per 24 hours. On a day when the swimming facility is being utilized by the maximum number of bathers allowable, 2000, the flow requirement for that day would then be one million gallons. For any day when the bathing population fell below 2000, the gallon flow-through requirement would be proportionately reduced. The second water quality parameter Petitioner is required to maintain relates to coliform densities. High coliform count can result in serious illness. The coliform density in the swimming area must not exceed 1000 most probable number of coliform organisms per 100 milliliters. Coliform levels in the swimming area at any given time are dependent upon several variable factors. Among these factors is the number of coliforms being introduced into the swimming area. As has previously been discussed, when the sump pump which reroutes high coliform water around the upper part of the swimming area is not operating, the number of coliforms would increase. Also during periods of rainfall, coliforms are washed into the swimming area in runoff which enters from overland and through the storm drain which enters the lower part of the swimming area. Temperature is a variable factor which affects coliform levels. As temperatures increase, bacteria multiply more rapidly, and thus coliform levels increase. The number of human beings utilizing the water at a given time impacts coliform levels in that, since humans are producers of coliforms, when greater numbers of humans are in the water, higher coliform levels would normally result. These factors coalesce in that high temperatures normally occur during the summer months which contain the days of most intense usage, and thus high coliform levels would be expected during these times if all other factors remain constant. Conversely, during the winter months, when facility usage is lowest and temperatures are lowest, lower coliform levels would be expected. One additional variable factor which affects coliform levels is the amount of water flowing through the swimming area. Water dilutes any contaminants or pollutants that come into the system. Petitioner attempted to show a correlation between rate of flow and coliform levels in excess of 1000 parts per 100 milliliters (ppm). (Petitioner's Exhibit #1) However, because the date collected did not control for and did not take into account the presence or non-presence of the variable factors which affect coliform levels, no conclusions could be reached regarding whether water quality could be maintained in the swimming area in accordance with HRS standards, with periodic adjustments to flow from the wells. No competent substantial evidence was offered to show that periodic adjustments to flow would prevent Petitioner from meeting HRS standards for water quality and therefore prevent Petitioner's continuing the operation of his public bathing facility. The original permit application filed by Petitioner only requested an allocation of 31.7 million gallons per year (mgy), this amount being only the water utilized for the campground. The construction of Petitioner's potable water supply for the campground was approved by the Florida Department of Environmental Regulation and meets all water quality standards applicable to the campground. Although the water used for the campground comes from a pipe connected to the 24-inch well, this request for water is not related to and does not account for the water which flows from the wells into the swimming area and out through Canoe Creek and is used for recreational purposes. The technical staff report (TSR) prepared by Respondent's staff recommends granting an allocation of 31.7 mgy of water to Petitioner for commercial and household uses (to supply the campground) and an allocation of 2.55 billion gallons per year (bgy) of water for recreational uses. The recommended allocation for recreational use breaks down to an average daily use of 7 million gallons per day (mgd), representing a 44 per cent reduction in the amount of water presently flowing from the wells for recreational purposes. The TSR further recommends a maximum daily use for any one day of the year of 18 million gallons of water. This recommendation actually exceeds the present production capacity of the wells. The TSR further recommends that the overall 44 per cent reduction in use of water for recreational purposes be achieved by adjustment of well discharges during non-use periods each day and seasonal non-use periods when bathing and marina use are minimal. This would require installation of operable valves on each of the wells as is also recommended in the TSR. Subject to the limitation imposed by the annual allocation and subject to the maximum daily allocation, Petitioner would make the flow adjustments as conditions warrant and as he sees fit. The Floridan aquifer in the region surrounding Petitioner's property is not expansive; thus there is a maximum amount of water which can be stored within it. Water will tend to discharge at some point within the system when flow is stopped at another point. The drawdown effect on the potentiometric head caused by the 24-inch well after flowing for a period of twenty-four hours can be calculated to extend up to two miles west of that well and further to the east. The excess water flowing through Petitioner's wells, over and above that required for recreational purposes, could be tapped and used by other potential consumers of water within the same vicinity, if Petitioner reduced the flow from his wells. Underlying the Floridan aquifer in the Wekiva River Basin Area is a layer of saline water, the degree of salinity being measured by the chloride concentrations in said water. This underlying saline water is relic sea water and is not salt water being pulled in from the oceans. When water is discharged from the Floridan aquifer and potentiometric pressures are thereby reduced, saline water is allowed to move upward and closer to the Floridan aquifer, resulting in higher chloride concentrations in the water discharged from the Floridan aquifer. The converse is also true. Reductions in discharge tend to increase potentiometric pressures which, in turn, would push the saline water further away from the Floridan aquifer. Chloride concentrations are the basic measurement of water quality. In measuring chloride concentrations in water, 250 milligrams of chloride per liter of water is the significant figure because this measuring point is the highest concentration of chloride that is recommended for public drinking water supplies. Data has been collected regarding chloride concentrations in water taken from the Floridan aquifer beneath the Wekiva River basin and shows significant changes during the period from 1973 to 1986. In a United States Geological Survey (USGS) study of water quality in the Floridan aquifer beneath the Wekiva River basin, conducted in 1973-74, an area or isochlor of water with chloride concentrations exceeding 250 (ppm) was identified. Petitioner's wells were included in this study, and the chloride level in his wells was measured at 230 ppm. The isochlor depicting water with chloride concentrations exceeding 250 ppm extended southward to a point north of Petitioner's property. A follow-up study begun in 1986 shows that the area or isochlor of water with chloride concentrations exceeding 250 ppm has extended itself, moving southward to include and pass the Petitioner's wells, past the Lake County border line which lies to the south of Petitioner's property and into Orange County, Florida. In 1986 Petitioner's wells produced water which measured 296 ppm and 312 ppm respectively. Because the 1986 study was not complete as of the time of hearing, no clear determinations can be made as to the extent to which the Petitioner's wells have contributed to the southward migration of the 250 mg/1 of chloride base line. At a minimum, the withdrawals of water from Petitioner's wells is having a localized impact in the immediate vicinity of those wells. Reduction of the flows from Petitioner's wells would, at a minimum, result in an improvement in the chloride levels in a localized area. That improvement in conjunction with similar improvements at other wells in the area could ultimately result in a more regional improvement of the chloride levels. Because of the factors observed indicating a deterioration of the aquifer systems in the face of increased demand, Respondent's staff has created Special Condition Zones in an effort to identify areas within the Wekiva River basin where hydrologic conditions warrant concern and special attention. Zone One, in which Petitioner's property is located, is the area of greatest concern because of observed changes within the hydrologic regime. Special permit conditions have been created for these zones to insure that no more water than is needed for a specific purpose is allocated to any user in the area. The flows from Petitioner's wells provide a benefit to the Wekiva River by diluting the pollutants which flow into the river. The cascading water from the standpipes aerates the water, which in turn increases the oxygen levels which is of benefit to the invertebrates, fish, and other animals that live in the water. The flows from Petitioner's wells account for approximately six or seven per cent of the flow of the Wekiva River at the gauging station at State Road 46. Nevertheless, no persuasive competent substantial evidence was offered to show that an overall 44 per cent reduction in flow from Petitioner's wells would in any significant way impact the quality of water in the Wekiva River. The District staff recommended that numerous "standard general conditions" and numerous "other conditions" which relate specifically to this project be incorporated in Petitioner's CUP permit. Those conditions are set forth at length in Respondent's Exhibit No. 6 and it would serve no useful purpose to repeat them all here.
