Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
Findings Of Fact The Proposed Permit This case involves a 65-acre site in north Lee County owned by the City of Ft. Myers. At all material times, the land has been zoned under industrial- equivalent designations. By leases that are not part of this record, Ft. Myers has leased 21.4 acres of the 65 acres to various governmental agencies, including Lee County, Lee County Sheriff's Office, and possibly the Florida Department of Juvenile Justice (formerly known as Department of Health and Rehabilitative Services). The following facilities are presently located on the 21.4 acres: Juvenile Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office Aviation Department, and Emergency Operations Center. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6 undeveloped acres to Lee County for a term of 50 years. This lease allows Lee County to use the 43.6 acres for $1 per year, but only for the operation of a Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may terminate the lease if Lee County ceases to operate the facility. Likewise, Lee County may terminate the lease if the Department of Juvenile Justice ceases to fund the County's operation of the facility. Under the lease, preference is given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates liability to Lee County for claims or damages arising from released fuels, including from pipelines. The lease is not assignable without Ft. Myer's consent. By agreement dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6- acre parcel to the Department of Juvenile Justice for the purpose of the construction of a juvenile residential commitment facility. Lee County receives no rent from the Department of Juvenile Justice. In Paragraph 10 of the agreement, the Department of Juvenile Justice agrees to maintain, at its expense, "all improvements of every kind . . .." Lee County must make any repairs to improvements if the Department of Juvenile Justice fails to do so. By subsequent agreement, Respondent Department of Management Services (DMS) became the agent for the Department of Juvenile Justice for the design, permitting, and construction of the juvenile justice facility. By Application for a surface water management permit executed June 16, 1994, DMS applied for a surface water management permit for the construction and operation of a 10.9- acre project known as the Lee County Juvenile Commitment Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County and subleased to the Department of Juvenile Justice. The application states that the existing 21.4 acres of developed sites, which are leased under separate agreements to different governmental entities, "will be permitted as is." The Staff Review Summary of Respondent South Florida Water Management District (SFWMD) describes the purpose of the application as follows: This application is a request for Authorization for Construction and Operation of a surface water management system to serve a 10.9 acre Institutional project discharging to Six Mile [Cypress] Slough via onsite wetlands and road- side swales. The application also requests Authorization for Operation of a surface water management system serving a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Staff recommends approval of both authorizations with conditions. The Staff Review Summary accurately states that the owner of the land is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases to Lee County the 21.4 acres devoted to the five existing facilities. Although Lee County probably is a lessee of some of these parcels, the Lee County Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels. One of the other parcels may involve a state agency, again under either a lease or a sublease. The Staff Review Summary inaccurately states that the project developer is Lee County. The project developer is DMS or its principal, the Department of Juvenile Justice. The Staff Review Summary reviews the existing development on the 21.4 acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9- acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's Office Aviation Department, and 3.9-acre Emergency Operations Center. The Staff Review Summary states that the footer of the Juvenile Detention Center was inspected in February 1980. The site drains into a 1.2- acre retention pond, which was a natural pond dug out to accept the drainage from the Juvenile Detention Center. A small amount of surface flow drains from the Juvenile Detention Center to a perimeter swale that drains west into a ditch running along Ortiz Avenue. The Staff Review Summary states that the building permit for the Price Halfway House was issued in October 1982. The site drains into the 1.2-acre retention pond, which was apparently enlarged a second time to accept the additional flow. A small amount of the flow from the Price Halfway House also drains to the perimeter swale and west into the Ortiz Avenue ditch. The Staff Review Summary states that the building permit for the Lee County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a determination that no permit was required for two additions to the stockade in 1988 and 1989. For the additional impervious surface added by these additions, one inch of water quality treatment was provided. After the abandonment of a pumping system, drainage of the stockade site consists of water building up in existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The Staff Review Summary adds that a small retention area constructed at the southeast corner of the site treats stormwater from the stockade and the Sheriff's Office Aviation Department. The summary adds that a small amount of stormwater drains north into an exterior swale that drains into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Sheriff's Office Aviation Department in August 1977. Stormwater from the site sheetflows to exterior swales north and south of the building. When the swales fill up, the water flows into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Emergency Operations Center on October 11, 1977. Drainage from the center flows directly into the Ortiz Avenue ditch. Under "Water Quality," the Staff Review Summary reports that SFWMD "did not require compliance with discharge rate or criteria" based on Section 1.6, Basis of Review for Surface Water Management Permit Applications within the [SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD for the construction and operation of surface water management systems. The summary adds that there have been no "water quality or quantity complaints associated with this site over the past 18 years since its initial construction." Noting that a surface water management permit is requested for the entire 65-acre parcel, the Staff Review Summary states that the above-described drainage systems for the five existing facilities are "operational and will remain as they now exist." Turning to the proposed development, the Staff Review Summary states that the remaining 43.6 undeveloped acres "will also be leased to Lee County by the City for the proposed commitment facilities." The facilities are accurately described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which will be drained by internal drainage swales and culverts flowing into detention areas, which will discharge through a control structure into onsite wetlands leading to the Ortiz Avenue swale. Addressing designed discharge rates, the Staff Review Summary acknowledges that the bootcamp's discharge rate will exceed the allowable rate for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the design rate is .37 cfs. The Staff Review Summary explains that this discrepancy results from the use of the minimum size orifice (three inches) in the control structure. Addressing water quality, the Staff Review Summary reports that commercially zoned sites are required to provide one-half inch dry pretreatment for water quality unless reasonable assurance can be provided that hazardous material will not enter the surface water management system. Determining that no hazardous material will be stored or generated on the site, SFWMD did not require the one-half inch dry pretreatment of runoff. Noting that no surface water management permits have ever been issued for any part of the 65-acre parcel, the Staff Review Summary recommends that, subject to the customary Limiting Conditions, SFWMD issue: Authorization for Construction and Operation of a 10.9 acre Institutional Project discharging to Six Mile Cypress Slough via onsite wetlands and roadside swales, Operation of a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Limiting Condition 4 states that the permittee shall request transfer of the permit to the "responsible operational entity accepted by [SFWMD], if different from the permittee." Limiting Condition 8 adds: A permit transfer to the operation phase shall not occur until a responsible entity meeting the requirements in section 9.0, "Basis of Review . . .," has been established to operate and maintain the system. The entity must be provided with sufficient ownership or legal interest so that it has control over all water management facilities authorized herein. Special Condition 11 states: "Operation of the surface water management system shall be the responsibility of Lee County." The Permittee and the Entity Responsible for Maintenance The proposed permit consists of two authorizations. The first authorization is for the construction and operation of the surface water management system on the 10.9-acre parcel on which will be constructed the bootcamp and halfway house. The second authorization is for the operation of the existing surface water management system on the already-developed 21.4 acres and the unimproved surface water management system on the remaining 32.7 acres. There are two problems with the designation of Lee County as the entity responsible for maintaining the permitted surface water management systems. Basis of Review 9.1.B states: To satisfy [P]ermit [L]imiting [C]ondition [8], the Permittee must supply appropriate written proof, such as either by letter or resolution from the governmental entity that the governmental entity will accept the oper- ation and maintenance of all the surface water management system components . . .. The authorization for operation of the systems on the 21.4-acre and 32.7-acre parcels does not await any construction. Once the permit is issued, the authorization is effective. Therefore, all prerequisites to the designation must have been satisfied before the operation permit issues. For the 21.4-acre parcel, DMS has not provided reasonable assurance that Lee County is the lessee or sublessee of all of the parcels underlying the five existing facilities. In fact, it appears that Lee County is not the lessee or sublessee of all of these parcels. Even if Lee County were the lessee or sublessee of these five parcels, DMS has not provided reasonable assurance that Lee County has assumed responsibility for the maintenance of the surface water management system for the five parcels. Contrary to Basis of Review 9.1.B, there is no written agreement by Lee County to assume operational responsibility, nor is there even an actual agreement to this effect. SFWMD's rules sensibly require that written consent be obtained before the operation permit is issued. Likewise, DMS has failed to show that Lee County has agreed to assume responsibility for the operation and maintenance of the surface water management system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before issuing the permit because no construction will precede operation for the surface water management system on this parcel. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel is leased to Lee County as part of the 43.6- acre parcel. But in the December 17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes responsibility for maintaining all improvements, which arguably includes drainage improvements. As between Ft. Myers and Lee County, Lee County assumes secondary liability for the maintenance of all improvements. But the failure of the Department of Juvenile Justice to do so would likely represent a default under the agreement. In such a case, the lease and separate agreement probably would either be in litigation or Lee County would have terminated its obligations under the contracts. In either case, it is unlikely that Lee County would perform its secondary responsibility to maintain the drainage improvements, especially where it is receiving no rent from the Department of Juvenile Justice and priority is given to Ft. Myers juveniles in admission decisions. Construction will precede operation as to the 10.9- acre parcel so the parties have an opportunity, even after the construction and operation permit is issued, to secure the necessary written consent before the operation permit goes into effect. But similar deficiencies exist with respect to the 10.9- acre parcel because the same agreement imposes upon the Department of Juvenile Justice, not Lee County, the obligation to maintain improvements. An additional complication arises as to the 10.9-acre parcel. The Department of Juvenile Justice intends to contract with one or more private entities to operate the bootcamp and halfway house, so there is at least one more party that Lee County could claim was responsible for maintenance of the surface water management system. The question of who is responsible for maintaining the surface water management systems is important. Drainage quantities and directions can change if swales clog up with vegetation or other matter. In this case, one roadside swale in the area of the 21.4-acre parcel is blocked with vegetation. DMS and SFWMD have thus failed to provide reasonable assurance that the designated entity has assumed responsibility for the maintenance and operation of the existing systems or will assume responsibility for the maintenance and operation of the proposed system following its construction. Permit for Existing Development Section 1.6, Basis of Review, states: [SFWMD] issues construction and operation permits for proposed surface water management activities and operation permits for existing systems. The criteria herein are specifically designed to apply to proposed activities (construction and operation permits). Therefore, some of the criteria may not be applicable to the permitting of existing systems (operation permits). For example, in some cases, existing systems may not meet flood protection criteria. Criteria deviation for existing systems will be identified in staff reports. SFWMD has produced no evidence explicating the extent to which existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are entitled to operating permits without meeting some of the criteria applicable to proposed systems, such as the system on the 10.9-acre parcel. There is nothing whatsoever in the record to explain why certain existing systems might not have to meet certain criteria, such as flood protection criteria. Except for the quantity deviation discussed below, there is nothing in the record disclosing the extent to which SFWMD has waived, or even considered the applicability of, certain or all criteria prior to the issuance of operation permits for the existing systems. In practice, SFWMD does not adhere even to the vague standards implied in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit existing systems "as is, where is," as long as they have had no reported problems. There are numerous deficiencies in the "as is, where is" unwritten policy, apart from the obvious one that it conflicts with the assurance of 1.6 that only "some of the criteria may not be applicable" to existing systems. First, the record does not define what a "problem" is. Second, the record discloses no means by which reported problems are collected and later accessed, such as by a parcel index. The "as is, where is" policy is an abdication of the limited responsibilities that SFWMD imposes upon itself in 1.6, especially when applied to the present facts. The facts are straightforward. Neither Ft. Myers, Lee County, nor any other party has ever obtained a permit for any surface water management system, despite numerous improvements in the past 20 years requiring such permits, including the construction of a heliport, at which maintenance and refueling of helicopters takes place. In two relatively minor cases, discussed below, SFWMD erroneously determined that no permit was required. In one of those cases, the applicant, Lee County, candidly admitted the existence of a flooding problem. Based on the present record, neither DMS nor SFWMD has justified the issuance of an operation permit for the systems on the 21.4- and 32.7-acre parcels based either on Basis of Review 1.6 or on the "as is, where is" unwritten policy. Construction of the five improvements on the 21.4 acres began between 1975 and December 1977 with construction of a portion of the Lee County Stockade building and parking, Emergency Operations Center building and parking, and a now- removed barn for the Lee County Sheriff's Office. At the same time, a lake was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of the 21.4 acres were converted to impervious surface. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were converted to impervious surface by the construction of a perimeter dike and road. During this period, construction commenced on the Juvenile Detention Center, adding another 1.63 acres of impervious surface. Between March 1980 and December 1981, additions were made to the Lee County Stockade building and the lake for an additional 0.45 acres of impervious area. Between December 1981 and March 1984, the Price Halfway House building and parking were constructed, adding another 0.79 acres of impervious surface. Between March 1984 and February 1986, a heliport facility and landing area were constructed for the Lee County Sheriff's Office, adding another 1.01 acres of impervious surface. Between February 1986 and February 1990, an additional 2.31 acres of impervious surface were added through additions to the Lee County Stockade and parking area, juvenile detention center, and Emergency Operations Center parking area. Between February 1990 and April 1993, another addition to the Lee County Stockade added 0.62 acres of impervious surface. An additional 0.17 acres of lake was excavated. During this time, applicable rules and statutes required permits for the construction of "works" affecting surface water, including ditches, culverts, and other construction that connects to, or draws water from, drains water into, or is placed in or across the waters in the state. The buildings, parking, other impervious surfaces, ditches, swales, dikes, lake excavations, and, at one point, addition of a now- abandoned pump all constituted "works" for which surface water management permits were required. In 1988, Lee County or Ft. Myers applied for an exemption for an addition to the Lee County Stockade. The basis for the claim of exemption was that the parcel consisted of less than 10 acres and the total impervious surface did not exceed two acres. Although rules in effect at the time required consideration of the contiguous 65 acres under common ownership and the total impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD erroneously issued an exemption letter. The second instance involving a claim of exemption took place in 1989 when Lee County submitted plans for another addition to the Lee County Stockade, adding 0.51 acres of impervious surface. The submittal acknowledged a "flooding" problem, but promised a master drainage plan for the "entire site." SFWMD determined that no permit would be required due to the promise of a master drainage plan. No master drainage plan was ever prepared. The flooding problem precluded issuance of the operation permit on an "as is, where is" basis for the already-developed 21.4-acre parcel, even assuming that SFWMD adequately justified the use of this unwritten permitting procedure. In fact, SFWMD has not explained adequately its "as is, where is" permitting procedure or even the undelineated permitting criteria referenced in 1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential permitting of existing systems. The owner and developer constructed the existing systems in near total disregard of the law. The two times that the owner and developer complied with the permitting process involved small additions for which exemptions should not have been granted. In one case, SFWMD exempted the proposed activity due to its error calculating minimum thresholds as to the areas of the parcel and the impervious surface. In the other case, SFWMD exempted the proposed activity partly in reliance on a promised master drainage plan that was not later prepared. To issue operation permits for the existing systems on the 21.4- and 32.7-acre parcels would reward the owner and developer of the 65-acre parcel for noncompliance with the law and provide an incentive for similarly situated landowners and developers likewise to ignore the law. Before issuing operation permits on systems that have received no comprehensive review and that have been added piecemeal over the years, SFWMD must evaluate the surface water systems on the entire 65-acre parcel to determine whether they meet all applicable criteria. The "as is, where is" unwritten policy has no applicability where there have been reports of flooding. If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6, it must be prepared to identify and explain which criteria are waived and why. Water Quality Basis of Review 5.2.2 provides that projects that are zoned commercial or industrial, such as the present one, must provide one-half inch of "dry" detention or retention pretreatment, unless reasonable assurances are provided "that hazardous materials will not enter the project's surface water management system." There is no existing or proposed dry detention on the 65 acres. The existing development includes the Sheriff's Office Aviation Department, which serves as a heliport. The fueling and maintenance of helicopters means that contaminants may enter the stormwater draining off the site. The functioning of the surface water system on this site is therefore of particular importance. There also may be more reason to question the functioning of the surface water system on this site. It is south of the Lee County Stockade, where flooding has been reported. The heliport site has also been the subject of more elaborate drainage improvements, such as the location of a small retention pond near the Stockade boundary and a pump, the latter of which has since been abandoned. The existing system on the 21.4-acre parcel, as well as the existing and proposed systems on the remainder of the 65 acres, require dry pretreatment for reasons apart from the presence of the heliport. The materials likely to be used with the existing and proposed developments are similar to those found on residential sites. SFWMD and DMS contend that there is therefore no need to require dry pretreatment as to these areas. However, the existing and intended institutional uses, such as jails and bootcamps, represent an intensity of use that exceeds the use typical in areas zoned residential. This increased intensity implies the presence of typical residential contaminants, such as petroleum-based products or cleaning solvents, but in greater volumes or concentrations, if not also, in the case of solvents, different compositions. The lease addresses potential liability for released petroleum. In the absence of a showing that such hazardous materials are prevented from entering the runoff, SFWMD must require dry pretreatment for the systems occupying the entire 65-acre parcel. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quality criteria or that the proposed system will satisfy applicable water quality criteria. Water Quantity The 65-acre parcel adjoins Ortiz Avenue on the west and property owned by Petitioners on the east and south that is undeveloped except for a borrow pit some distance from the 65- acre parcel. The parcel is roughly 1000 feet east- west and 2700 feet north-south. The proposed halfway house is at the north end of the parcel. The halfway house is situated between a proposed detention pond on the west and a recreation field on the east. A paved road divides the halfway house from the rest of the 65- acre parcel. South of the road are the Lee County Stockade on the west, which abuts Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates these two sites. The berm runs from the road along the west shore of the twice- enlarged 1.2- acre retention pond and the west boundary of the Price Halfway House, which is south of the Juvenile Detention Center. To the west of the berm, south of the Lee County Stockade, is the Sheriff's Office Aviation Department or heliport facility, which abuts Ortiz Avenue. South of the Aviation Department is an outparcel used by the Florida Department of Corrections that also abuts Ortiz Avenue. East of the outparcel is the proposed halfway house with a proposed detention pond west of the halfway house and south of the outparcel. The Emergency Operations Center, which abuts Ortiz Avenue, is south of the detention pond and surrounded on three sides by the 32.7 acres to be left undisturbed at this time. There are perimeter berms around all of the parcels except for the Juvenile Detention Center and Price Halfway House, which are served by a single berm, and the Emergency Operations Center, which appears not to be bermed. The prevailing natural drainage is not pronounced either by direction or volume because the land is nearly level. The natural direction of drainage is to the south and west and remains so on Petitioners' land to the east and south and the undisturbed 32.7 acres to the south. The variety of drainage directions within the remainder of the 65- acre parcel reflects the extent to which berms, swales, ponds, pumps, roads, buildings, parking areas, and other works have been added to the northerly parcels. Runoff reaching the northern boundary of the 65 acres will be diverted due west around the proposed detention pond to the swale running along the east side of Ortiz Avenue. Runoff from the recreation field and halfway house building and parking area drain into the proposed detention pond, which releases water through a gravity control device to the Ortiz Avenue swale. There appears to be a connection routing some runoff from the south side of the recreation field to the Juvenile Detention Center, where it travels west in a roadside swale to the Ortiz Avenue swale. A little less than half of the area of the Juvenile Detention Center site drains into perimeter swales along the north and east borders and then to the west before emptying into the Ortiz Avenue swale. The remainder of the Juvenile Detention Center drains into the retention pond. The same is true of the Price Halfway House. The Lee County Stockade drains to each of its borders where the water then runs west along the north or south border to the Ortiz Avenue swale. The southern half of the Lee County Stockade site drains into the small retention pond at the northwest corner of the Sheriff's Office Aviation Department. Most of the runoff from the heliport facility runs to the southwest corner of the parcel, which is the location of the abandoned pump. From there, the runoff continues to the Ortiz Avenue swale. Very little if any of the runoff from the heliport enters the small retention pond on the northwest corner of the parcel. The bootcamp drains into the detention pond, which then releases water by a gravity control structure into a portion of the undisturbed 32.7-acres before entering the Ortiz Avenue swale. The Emergency Operations Center site drains in all directions away from the building and parking area, eventually draining into the Ortiz Avenue swale. Stormwater discharge rates from the proposed halfway house and bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively. SFWMD and DMS contend that the excessive discharge from the bootcamp is acceptable because the gravity control device for the proposed detention pond is of the smallest size allowable, given the indisputable need to avoid clogging and ensuing upstream flooding. Initially, SFWMD approved the discharge rates for the halfway house and bootcamp because, when combined, they did not exceed the total allowable value. However, this approach was invalid for two reasons. First, the two sites contain entirely independent drainage systems separated by several hundred feet. Second, after correcting an initial understatement for the value for the halfway house, the actual total exceeds the maximum allowable total. SFWMD contends that the slight excess is acceptable because of the inability to use a smaller orifice in the gravity control structure. However, the discharge quantity easily could have been reduced by design alternatives, such as enlarging the detention pond, which is mostly surrounded by land that is to be left undisturbed. The ease with which the minimum-orifice problem could have been avoided rebuts the presumption contained in Basis of Review 7.2.A that excessive discharge quantities are presumably acceptable if due to the inability to use a smaller orifice. Also, SFWMD and DMS have failed to show that the effect of the excessive discharge quantities is negligible, so the exception in the SFWMD manual for negligible impacts is unavailable. Neither SFWMD nor DMS provided any reasonable assurance as to the quantity of discharge from the 21.4 acres. Rough estimates suggest it is more likely that the quantity of discharge may greatly exceed the allowable maximum. SFWMD must evaluate the water-quantity issues before issuing operation permits for the systems on the 21.4- and 32.7- acre parcels and a construction and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines that all water quantity criteria are met as to the existing systems, it may issue operation permits for the systems on the 21.4- and 32.7- acre parcels. Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to waive compliance with any or all quantity standards in reliance on Basis of Review 1.6, evaluate the effect of the waiver and explain the basis for the waiver. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quantity criteria or that the proposed system will satisfy applicable water quantity criteria. Impacts on Adjacent Lands Petitioners' property is impacted by the above- described drainage in two ways. First, Petitioners' property abutting the east side of Ortiz Avenue, south of the 65 acres, is especially vulnerable to flooding because the Ortiz Avenue swale is not a V-notch, but a half-V. The closed side of the swale prevents the water from running onto Ortiz Avenue. The open side of swale abuts Petitioners' property, so, if the swale's capacity is exceeded, stormwater will be released onto Petitioners' land. Second, perimeter berming along the east side of the 10.9- and 21.4- acre parcels will impede flow off the part of Petitioners' property located to the east of the 65 acres. A swale between the proposed halfway house and the Juvenile Detention Center will receive runoff from a small portion of Petitioners' property to the east and mostly north of the 65 acres. But there is no indication how much runoff from Petitioners' property can be so accommodated, how much runoff is impeded by the existing berm along the east side of the Juvenile Detention Center and Price Halfway House, and how much runoff will be impeded by the addition of new berms along the east side of the proposed halfway house and bootcamp. Basis of Review 6.8 requires that swales and dikes allow the passage of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b), Florida Administrative Code, requires that an applicant provide reasonable assurances that a surface water management system will not cause adverse water quality or quantity impacts on adjacent lands. Neither SFWMD nor DMS obtained topographical information for Petitioners' property, as required by the Basis of Review. Rough estimates suggest that the proposed project may require Petitioners' property to retain considerably more stormwater from the design storm event of 25 years, three days. DMS and SFWMD have thus failed to provide reasonable assurance that the proposed system would not have an adverse impact on Petitioners' upstream and downstream land.
Recommendation It is hereby RECOMMENDED that the South Florida Water Management District enter a final order denying the application of the Department of Management Services for all permits for the operation and construction and operation of surface water management systems on the 65-acre parcel. ENTERED on June 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on June 19, 1995. APPENDIX Rulings on Proposed Findings of Petitioners 1-18: adopted or adopted in substance. 19: rejected as subordinate. 20-21: adopted or adopted in substance. 22-24 (first sentence): rejected as irrelevant. 24 (remainder)-46: adopted or adopted in substance. 47-53: rejected as subordinate. 54-64 (first sentence): adopted or adopted in substance. 64 (second sentence)-66: rejected as subordinate. Rulings on Proposed Findings of Respondent SFWMD 1-10: adopted or adopted in substance. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as unnecessary. 13: adopted or adopted in substance. 14-15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence. 17 (except for last sentence): adopted or adopted in substance. 17 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 18-32 (first sentence): rejected as unnecessary. 32 (remainder): rejected as unsupported by the appropriate weight of the evidence. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence, except that the proposed ponds are wet detention. 35 (first sentence): adopted or adopted in substance. 35 (remainder): rejected as unsupported by the appropriate weight of the evidence. 36-45: rejected as unnecessary. 46-47: rejected as unsupported by the appropriate weight of the evidence. 48-50 (second sentence): adopted or adopted in substance. 50 (remainder): rejected as unsupported by the appropriate weight of the evidence. 51-52, 55-57 (first sentence), and 58: adopted or adopted in substance, although insufficient water quality treatment. 53: adopted or adopted in substance. 54: rejected as unsupported by the appropriate weight of the evidence. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance, except after "therefore." None of remainder logically follows from what is said in 1.6. 61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as subordinate, unsupported by the appropriate weight of the evidence, and irrelevant. 65: rejected as subordinate. 66: rejected as irrelevant. The burden is on the applicant and SFWMD, if it wishes to issue the permits, to provide reasonable assurances as to the adverse impact of the drainage systems. 67-68: rejected as subordinate. 69: rejected as unsupported by the appropriate weight of the evidence. 70: rejected as unsupported by the appropriate weight of the evidence. 71: rejected as repetitious. 72: rejected as irrelevant, except for past report of flooding, which is rejected as repetitious. 73: rejected as repetitious. 74: rejected as irrelevant and subordinate. 75 (first three sentences): adopted or adopted in substance. 75 (remainder): rejected as unsupported by the appropriate weight of the evidence. 1 and 2: rejected as irrelevant insofar as the same result is reached with or without the permit modifications. Rulings on Proposed Findings of Respondent DMS 1-4: adopted or adopted in substance. 5: rejected as subordinate. 6: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 8: rejected as subordinate. 9: adopted or adopted in substance, except that the excessive discharge was not "caused" by the minimum-sized orifice, only defended on that basis. 10: adopted or adopted in substance. 11-12: rejected as subordinate. 13: rejected as irrelevant. 14: adopted or adopted in substance. 15: adopted or adopted in substance, except for implication that no flooding problems existed. 16: rejected as recitation of evidence. 17: rejected as subordinate. 18: rejected as irrelevant. 19: adopted or adopted in substance, to the extent that separateness of systems is relevant. 20: rejected as subordinate. 21: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23-30: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence, based on the present record. 33: rejected as unsupported by the appropriate weight of the evidence and relevance. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416 Russell P. Schropp Harold N. Hume, Jr. Henderson Franklin P.O. Box 280 Ft. Myers, Fl 33902 O. Earl Black, Jr. Stephen S. Mathues Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, FL 32399-0950 Vincent J. Chen Toni M. Leidy South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact DER is the Florida administrative agency which has the authority to administer and enforce the provisions of the Florida Safe Water Drinking Act, and the rules and regulations promulgated thereunder. (See Prehearing Stipulation). Respondent is a natural person and citizen of the State of Florida. Respondent owns and is responsible for the construction of a potable water distribution main extension ("the facility") which serves a subdivision known as High Bluff Acres-near the community of Midway in Gadsden County, Florida. (See Prehearing Stipulation). On February 1, 1980, Respondent was issued construction permit number DS20-27385 for the facility. The construction permit described the facility as a potable water distribution main extension to the Talquin Electric Company's Midway water- system. The project was to be constructed with approximately 940 linear feet of four inch PVC valves and appurtenances. Specific condition number 15 of the permit restricted operation of the extension until department approval was issued. This approval would be granted upon receipt of certification by the engineer of record as to construction in accordance with the approved plans and specifications and receipt of two satisfactory bacteriological analyses. DER has not received this information and had not issued an approval for use of the facility. The construction permit expired on September 1, 1981. (See Prehearing Stipulation). Respondent modified the facility by constructing it with 550 feet of one inch to one and one-half inch PVC water mains. (See Prehearing Stipulation). DER conducted an inspection of the facility on February 23, 1982. The facility was found to be in use without final DER approval. By letter dated February 26, 1982, DER notified Respondent of his non-compliance with Chapter 17-22, Florida Administrative Code, and requested Respondent to submit specified compliance items. (See Prehearing Stipulation). In October of 1982, DER personnel contacted Respondent . by telephone. Respondent agreed to obtain a permit renewal and modify the unauthorized water line as soon as funds in the form of rent were released by the Department of Community Affairs (DCA). On November 1, 1982, DCA notified DER that payments were being made. (See Prehearing Stipulation). On June 8, 1983, DER notified Respondent of his non- compliance with Chapter 17-22, Florida Administrative Code, and requested a reply on actions to be taken to correct the deficiency. By letters dated October 18, 1984, and December 17, 1984, DER notified Respondent that the facility was not approved for use. Respondent was further requested to inform DER as to the status of the facility. DER received no response to these requests. (See Prehearing Stipulation). The facility was not constructed in accordance with DER-approved plans, and DER has issued no written approval or consent for alterations to the system. (See Prehearing Stipulation). Respondent placed the facility in service without submitting a certification of completion and a copy of satisfactory bacteriological results to DER for approval and clearance. (See Prehearing Stipulation). The facility is not designed to provide maximum hourly system demand without development of distribution pressure lower than 20 psi. (See Prehearing Stipulation). DER has incurred costs and expenses in the pursuit of this case in the amount of $453.50. (See Prehearing Stipulation). Respondent's facility consists of distribution and storage facilities only and does not have any collection or treatment facilities. It obtains all its water from and is not owned or operated by the Talquin Electric System. Further, Respondent is not a carrier which conveys passengers in interstate commerce. (See Prehearing Stipulation) The public water distribution system constructed by Respondent is connected to twenty dwelling units in twelve structures. The High Bluff Acres subdivision is a government- subsidized, but privately-owned, low-income housing development, wherein DCA, acting on behalf of the U.S. Department of Housing and Urban Development (HUD), subsidizes the payment of rent for the housing. Respondent entered into several agreements on behalf of Salter, Stephens and Thompson, with the DCA to rehabilitate existing structures at High Bluff Acres and thus qualify for the Section 8 Moderate Rehabilitation Housing Assistance Program (HAP) established by HUD. The purpose for entering into the HAP contracts is to provide low cost housing to low income persons. These agreements were entered into over a period of several months during 1981 and 1982. Upon satisfactory completion of the rehabilitation pursuant to the agreements, Respondent entered into a HAP contract for each structure in High Bluff Acres, for a total of twelve structures (20 dwelling units). The HAP contract establishes the contract rent that can be allowed for each individual dwelling unit in a structure (the contract covers one structure). The contract rent is calculated according to a formula established by HUD for such purposes, and includes monetary allowances for utilities or other services which are provided by the owner. It does allow the lessor to recover his capital expenses in rehabilitating an individual housing unit. DER Exhibits 3 and 4 are two of the twelve HAP contracts entered into by the Department of Community Affairs and Respondent, Lex Thompson. Each of these contracts has an Exhibit B which is entitled "statement of services, maintenance and , utilities to be provided by owner." These exhibits show that Respondent has agreed to provide water to the units under the HAP contract. Contract rents paid to Respondent as authorized agent for the partnership include an allocation of money to reimburse Respondent for providing water to the tenants in the dwelling units. However, subsequent to Thompson's and DCA's entering into the contracts for payment of these rental subsidies, Respondent notified DCA that he had incurred additional capital expenses. Since his rental payments were already at the maximum allowable rate, however, Respondent did not seek to modify the aforementioned contracts because the amendment would not result in any greater payment of monies to him. At no time has Respondent amended the terms of the HAP contracts with respect to provision of water to the tenants at High Bluff Acres. He is still receiving the reimbursement for provision of water to tenants. The general partnership which had been receiving contract rents for the dwelling units was dissolved in May, 1985, and the contracts for each structure were assigned to various individuals. Respondent, individually, owns one structure and his wife owns another. DER has received no potable water quality or quantity complaints regarding the High Bluff Acres subdivision. Moreover, the potable water system existing in the High Bluff Acres subdivision does not constitute a present threat to the public health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein order the following corrective actions: That within 45 days, Respondent shall hire an engineer registered in Florida to design a new distribution system for High Bluff Acres or modifications to the existing system, and submit a completed application to the Department for a permit to construct or modify the system. That within 60 days of issuance of the permit, Respondent shall have the distribution system installed, tested(including pressure testing, bacterial testing, disinfectant-testing) and shall have the engineer sign and seal the plans indicating to the Department that the system conforms with the approved plans, and both DER and American Water Works Association standards. It is further RECOMMENDED that Respondent be ordered to pay the Department's costs and expenses in the amount of $453.50, and that same be paid to the Department by cashier's check within 30days. DONE and ORDERED this 4th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESL1NG Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1985 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 13). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 4 is adopted in substance (See Finding of Fact 17). Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 18). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 19). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 22). Proposed Finding of Fact 8 is adopted in substance (See Finding of Fact 21). Rulings on Respondents Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 1). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 2). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 3). Proposed Finding of Fact 4, first sentence, is adopted in substance (See Finding of Fact 4). The second sentence is rejected as being unsupported by the evidence and irrelevant. Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 5). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 6). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 7). Proposed Finding of Fact 8, first sentence, is adopted in substance (See Finding of Fact 8). The remainder of Proposed Finding of Fact 8 is rejected as irrelevant. Proposed Finding of Fact 9 is adopted in substance (See Finding of Fact 12). Proposed Finding of Fact 10 is adopted in substance (See Finding of Fact 14). Proposed Finding of Fact 11 is adopted in substance (See Finding of Facts 19 and 20). Proposed Finding of Fact 12 is rejected as unsupported by the evidence, irrelevant and conclusory. Proposed Finding of Fact 13 is adopted in substance (See Finding of Fact 23), except that it is rejected as it relates to a potential threat because that portion is unsupported by the competent, credible evidence. COPIES FURNISHED: Clare E. Gray, Esquire Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William L. Hyde, Esquire 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302 Victoria Tschinkel Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: Nothing in this permit should 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, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. In the event a water shortage, is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions, as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
