The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
