Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
The Issue Whether proposed Water Use Permits Nos. 20012236.000 (the Potable Water Permit) and 20012239.000 (the Irrigation Permit) and proposed Environmental Resource Permit No. 43020198.001 (the ERP) should be issued by the Respondent, Southwest Florida Water Management District (the District).
Findings Of Fact The Parties The individual Petitioners, Farnsworth, Roop, and Varnum are all Florida citizens and residents of Sumter County. None of the individual Petitioners offered any evidence relating to direct impacts that the ERP would have on their property. With respect to the Potable Water and Irrigation Permits, anecdotal testimony was presented by Petitioners and Wing and Weir relating to well failures and sinkholes in the area. Two Petitioners, Roop and Varnum, live in close proximity to the property encompassed by the three permits. Petitioner Farnsworth’s property is approximately three and a half miles from the project boundary. Wing and Weir live approximately four and a half to five and 18 miles from the project site, respectively. SCAID is a Florida not-for-profit corporation that has approximately 130 members. Farnsworth, the president of SCAID, identified only Roop and Varnum as members who will be directly affected by the activities to be authorized by the permits. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. The Utility and the Authority are limited liability companies, of which the Villages Inc. is the managing partner. The Villages Inc. is a Florida corporation. The Utility, which will serve as a provider of potable water, is regulated by the Public Service Commission, while the Authority which will provide irrigation water, is not. The Villages Inc., Development The Villages Inc. is a phased, mixed use, retirement community, which is located at the intersecting borders of Lake, Marion, and Sumter Counties. Development has been on going since at least 1983, with a current planning horizon of the year 2019. Currently, there are 15,362 constructed dwelling units in the built-out portion of the Villages Inc. that are located in Lake County and the extreme northeast corner of Sumter County. The portion located in Marion County is 60 percent complete, with 750 homes completed and another 600 under construction. Approximately another 22,000 residences are planned for development in Sumter County by the year 2012, with an additional 10,200 by the year 2019. However, the Potable Water and Irrigation Permits are only for a six-year duration, and the ERP has a duration of only six years. None of the permits authorize development activities beyond that time frame. Generally speaking, the three permits at issue include an area owned by the Villages Inc. that lies in northeast Sumter County South of County Road 466 and North of County Road 466A. However, it is not projected that this entire area will be built-out during the terms of three proposed permits. Area Hydrology and Topography In the area of the Villages Inc., there is a layer of approximately five to ten feet of sand at the land surface, which is underlain by ten to 70 feet of a clayey sand. Both of these constitute the surficial aquifer and are extremely leaky, allowing water to percolate easily through to a lower layer. Except in the vicinity of Lake Miona, there is no water in the surficial aquifer except after rainfall events. The clayey sand layer is underlain by the Upper Floridan, a limestone unit. The top of this limestone layer ("the top of the rock") occurs at fluctuating depths of between 30 and 70 feet. At approximately 350 to 400 feet below the land surface, there begins a transition to a denser unit that serves as a confining layer between the Upper Floridan production zone and the Lower Floridan production zone. This confining layer, which was confirmed by drilling at three locations in the Villages Inc. is approximately 150 feet thick in the area of the Villages Inc. Another transition, this time to a less dense formation, begins at approximately 550 to 600 feet, which is considered the top of the Lower Floridan production zone. While testing conducted on the project site indicated almost no leakage between the Upper and Lower Floridan production zones, it is generally known by experts that there is some exchange of water between the two layers. Both the Upper and the Lower Floridan contain water that meets potable water standards and both are considered water production zones. The water quality of the two zones is not significantly different. The project area is prone to karst activity, that is, the formation of sinkholes. Sinkholes are formed as a result of the collapse of the overburden above subsurface cavities which have been formed through a very gradual dissolution of limestone, thus resulting in a "sink" at the land surface. Surface water bodies in the area include Lake Miona, Black Lake, Cherry Lake, and Dry Prairie, as well as several other small wetlands. The Potable Water and Irrigation Permits The potable water permit is for the withdrawal from the Upper Floridan Aquifer of 1.164 million gallons of water per day (MGD), on an annual average, for potable use in residences and both commercial and recreational establishments. It also limits the maximum withdrawal during peak months to 2.909 MGD. The Irrigation Permit is for the withdrawal from the Lower Floridan Aquifer of 2.850 MGD, on an annual average, for use in irrigation. The peak month usage rate permissible under the proposed permit would be 9.090 MGD. Water withdrawal under the Irrigation Permit will be used for the irrigation of residential lawns, common areas, commercial landscaping, and golf courses. Modeling of Drawdowns In assessing the impacts of proposed water withdrawals from an aquifer, District personnel considered effects on the aquifers and on-surface water features in the area. Computer- generated models of the predicted effects of the Potable Water and Irrigation Permits withdrawals provided one of the principal bases for this assessment. The primary geologist assigned to review the permit applications reviewed two of the models submitted by the Utility and the Authority (jointly the WUP Applicants) and ran one personal model of her own in order to predict the effects of the proposed withdrawals on the aquifers, as well as on any wetlands and other surface water bodies. In particular, the models predict both the vertical and horizontal extent to which the withdrawals may lower the level of water within the aquifers and in-surface waters under various conditions. One of the models submitted by the WUP Applicants predicted drawdowns during a 90-day period of no rainfall while the other predicted the impacts of the withdrawals over the life of the permits, considered cumulatively with the effects of withdrawals from the already-existing Villages' development in Sumter, Marion, and Lake Counties. The District’s geologist modeled the impacts of the withdrawals over the life of the permits and included the cumulative effects of all of the current Villages' withdrawals in Sumter County. All of these models included the combined effects of both the proposed Potable Water and the Irrigation Permits. Based upon these models, it is concluded that there will be no significant drawdowns as a result of the withdrawals authorized by the proposed water use permits. Specifically, the only predicted drawdown in the surficial aquifer (0.25 feet of drawdown) is in an area where there are no natural surface water features. Drawdown in the Upper Floridan is predicted at between 0.1 and 0.2 feet, while the drawdown in the Lower Floridan is predicted at a maximum of 1.5 feet. These minor drawdowns are not expected to cause any adverse impacts. Transmissivity is the rate at which water moves horizontally through the aquifer. In areas with high transmissivity, the results of water withdrawals from an aquifer will generally be low in magnitude, but broad in lateral extent. Water withdrawals from areas of low transmissivity will result in cones of depression that are more limited in lateral extent, but steeper vertically. The use of too high a transmissivity rate in a model, would overpredict the horizontal distance of the drawdowns caused by withdrawals, but would underpredict the vertical drawdown in the immediate vicinity of the withdrawal. Conversely, use of too low a transmissivity would over-predict the effects in the immediate vicinity of the withdrawal but underpredict the lateral extent of the drawdown. The WUP Applicants’ models used a transmissivity value for the Lower Floridan Aquifer of 100,000 feet squared per day ("ft.2/d'). The WUP Applicants’ consultant derived the transmissivity values from a regional model prepared by the University of Florida. The regional model uses a transmissivity value for the entire region of 200,000 ft.2/d for the Lower Floridan. While that transmissivity is appropriate for assessing large-scale impacts, on a more localized level, the transmissivity of the aquifer may be lower. Therefore, the WUP Applicants’ consultant met with District representatives and agreed to use a value half that used in the University of Florida model. A similar approach was used for the transmissivity value used in modeling effects in the Upper Floridan. Notably, specific transmissivity values recorded in four wells in the Villages Inc. area were not used because two of these wells were only cased to a depth of just over 250 feet, with an open hole below that to a depth of 590 feet. Thus, the transmissivity measured in these wells reflect conditions in the confining layer at the immediate location of the wells - not the transmissivity of the Lower Floridan production zone. Further, site-specific information on transmissivity, measured during pump tests at individual wells, does not correlate well to the transmissivity of the aquifer, even at short distances from the well. Transmissivities measured at individual wells are used to determine the depth at which the pump should be set in the well, not to determine the transmissivity of the aquifer. Thus, the use of transmissivities derived from the regional model, but adjusted to be conservative, is entirely appropriate. Moreover, using a transmissivity in her modeling of the project impacts of 27,000 ft.2/d for the Lower Floridan Aquifer, the district geologist’s model predicted no adverse impacts. Leakance is the measure of the resistance of movement vertically through confining units of the aquifer. The leakance value used by the District for the confining layer between the Upper and Lower Floridan was taken from the University of Florida model. Tests conducted on the site actually measured even lower leakance values. Thus, the evidence establishes that the leakance value used in the WUP Applicants’ and the District’s modeling for the Floridan confining layer was reasonable and appropriate. Competent, substantial evidence also establishes that the leakance value used for Lake Miona was reasonable. The WUP Applicants submitted to the District substantial data, gathered over several years, reflecting the balance of water flowing into Lake Miona and the lake’s levels in relation to the potentiometric surface. This documentation verified the leakance value used for Lake Miona in the modeling. Finally, the District modeling used appropriate boundary condition parameters. The District modeling used what is known as the "constant head" boundary and assumes the existence of water generated off-site at the boundaries. Such a boundary simulates the discharge of the aquifer at a certain level. The use of constant head boundaries is an accepted practice. The modeling conducted on behalf of the District and the Applicants provides a reasonable assurances that the Potable Water and Irrigation Permits will not cause adverse water quality or quantity changes to surface or groundwater resources, will not cause adverse environmental impacts to natural resources, and will not cause pollution of the aquifer. Furthermore, because the predicted drawdowns are so insignificant, reasonable assurances have been provided that the withdrawals will not adversely impact existing off-site land uses or existing legal withdrawals. The modeling also provides reasonable assurances that the withdrawals will not be harmful to the water resources of the District. Moreover, monitoring requirements included in the proposed Potable Water and Irrigation Permits provide additional reasonable assurance that – should the withdrawal effects exceed those predicted by the modeling – such effects are identified and necessary steps are taken to mitigate for any potential impacts. The District has reserved the right to modify or revoke all or portions of the water use permits under certain circumstances. Specifically, the proposed Potable Water Permit requires a monitoring plan that includes the following pertinent provisions: There shall be no less than three control wetland and ten onsite wetland monitoring sites; A baseline monitoring report, outlining the current wetland conditions; * * * A statement indicating that an analysis of the water level records for area lakes, including Miona Lake, Black Lake, Cherry Lake, Lake Deaton and Lake Griffin, will be included in the annual report; A statement indicating that an analysis of the spring flow records for Gum Spring, Silver Spring, and Fenney Spring, will be included in the annual report; * * * Wildlife analyses for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods to determine success of the mitigation; A mitigation plan for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods and thresholds to determine success of the mitigation; An annual report of an analysis of the monitoring data . . . . Similar provisions are included in the proposed irrigation permit. The WUP Applicants, in conjunction with the District, have developed sites and methodologies for this monitoring. Reasonable Demand The water to be withdrawn under the proposed Potable Water Permit will serve 10,783 people. This total results from the simple multiplication of the number of residences to be built during the next six years (5,675) by the average number of residents per household (1.9). Those numbers are based upon historical absorption rates within the Villages Inc. development since 1983, an absorption rate that doubles approximately every five years. The Utility proposed a per capita use rate of 108 gallons per day for potable use only. District personnel independently verified that per capita rate, based upon current usage in the existing portions of the Villages Inc. and determined that the rate was reasonable. Based upon the population projections and the per capita rate, the District determined that there is a reasonable demand for the withdrawal of the amount of water, for potable purposes, that is reflected in the Potable Water Permit. The Utility has provided reasonable assurance regarding the Utility’s satisfaction of this permitting criterion. As to the irrigation permit, the Villages Inc. plans, within the next six years, to complete the construction of 1,911 acres of property that will require irrigation. The amount of water originally requested by the Authority for irrigation withdrawals was reduced during the course of the application process at the request of the District. The District determined the reasonable amount of irrigation water needed through the application of AGMOD, a computer model that predicts the irrigation needs of various vegetative covers. Since the Authority intends to utilize treated wastewater effluent as another source of irrigation water, the District reduced the amount of water that it would permit to be withdrawn from the Lower Floridan for irrigation. The District, thus, determined that the Authority would need 1.59 MGD annual average for recreational and aesthetic area irrigation and 1.26 MGD annual average for residential lawn irrigation, for a total of 2.85 MGD. The Villages Inc. also plans to accumulate stormwater in lined ponds for irrigation use. However, unlike its treatment of wastewater effluent, the District did not deduct accumulated stormwater from the amount of water deemed necessary for irrigation. This approach was adopted due to the inability to predict short-term rainfall amounts. The uncontroverted evidence of record establishes reasonable assurances that there is a reasonable demand for the amount of water to be withdrawn under the proposed irrigation permit. Conservation and Reuse Measures Both the Utility and the Authority applications included proposed measures for the conservation and reuse of water. The conservation plan submitted in conjunction with the irrigation permit application provides for control valves to regulate both the pressure and timing of irrigation by residential users; contractual restrictions on water use by commercial users; xeriscaping; and an irrigation control system for golf course irrigation that is designed to maximize the efficient use of water. In addition, in the proposed permits, the District requires the Utility and the Authority to expand upon these conservation measures through such measures as educational efforts, inclined block rate structures, and annual reporting to assess the success of conservation measures. The Authority also committed to reduce its dependence on groundwater withdrawals through the reuse of wastewater effluent, both from the on-site wastewater treatment facility and through contract with the City of Wildwood. Reasonable assurances have been provided that conservation measures have been incorporated and that, to the maximum extent practicable, reuse measures have been incorporated. Use of Lowest Available Quality of Water In addition to the reuse of treated wastewater effluent, the Authority intends to minimize its dependence on groundwater withdrawals for irrigation use through the reuse of stormwater accumulated in lined ponds. Thirty-one of the lined stormwater retention ponds to be constructed by the Villages Inc. are designed as a component of the irrigation system on-site. Ponds will be grouped with the individual ponds within each group linked through underground piping. There will be an electronically controlled valve in the stormwater pond at the end of the pipe that will be used to draw out water for irrigation purposes. These lined stormwater ponds serve several purposes. However, the design feature that is pertinent to the reuse of stormwater for irrigation is the inclusion of additional storage capacity below the top of the pond liner. No groundwater will be withdrawn for irrigation purposes unless the level of stormwater in these lined ponds drops below a designed minimum irrigation level. Groundwater pumped into these ponds will then be pumped out for irrigation. Thus, the use of groundwater for irrigation is minimized. The Authority has met its burden of proving that it will use the lowest quality of water available. With respect to the potable permit, the evidence establishes that there are only minor differences between the water quality in the Upper Floridan and Lower Floridan in this area. The Upper Floridan is a reasonable source for potable supply in this area. Thus, reasonable assurances have been provided by the Utility that it will utilize the lowest water quality that it has the ability to use for potable purposes. Waste of Water In regard to concerns that the design of the Villages Inc.'s stormwater/irrigation system will result in wasteful losses of water due to evaporation from the surface of the lined ponds, it must be noted that there are no artesian wells relating to this project and nothing in the record to suggest that the groundwater withdrawals by either the Utility or the Authority will cause excess water to run into the surface water system. Additionally, the evidence establishes that, to the extent groundwater will be withdrawn from the Lower Floridan and pumped into lined stormwater ponds, such augmentation is not for an aesthetic purpose. Instead, the groundwater added to those ponds will be utilized as an integral part of the irrigation system and will be limited in quantity to the amount necessary for immediate irrigation needs. Finally, the water to be withdrawn will be put to beneficial potable and irrigation uses, rather than wasteful purposes. Under current regulation, water lost from lined stormwater ponds through evaporation is not considered as waste. Thus, the Authority and the Utility have provided reasonable assurances that their withdrawals of groundwater will not result in waste. The ERP The stormwater management system proposed by the Villages Inc. will eventually serve 5,016 acres on which residential, commercial, golf course, and other recreational development will ultimately be constructed. However, the proposed permit currently at issue is preliminary in nature and will only authorize the construction of stormwater ponds, earthworks relating to the construction of compensating flood storage, and wetland mitigation. Water Quality Impacts The stormwater management system will include eight shallow treatment ponds that will be adjacent to Lake Miona and Black Lake and 45 lined retention ponds. Thirty-one of these lined ponds will serve as part of the irrigation system for a portion of the Villages Inc.'s development. All of these ponds provide water quality treatment. The unlined ponds will retain the first one inch of stormwater and then overflow into the lakes. The ponds provide water quality treatment of such water before it is discharged into the lakes. The water quality treatment provided by these ponds provides reasonable assurances that the project will not adversely impact the water quality of receiving waters. While they do not discharge directly to surface receiving waters, the lined retention ponds do provide protection against adverse water quality impacts on groundwater. There will be some percolation from these ponds, from the sides at heights above the top of the liner. However, the liners will prevent the discharge of pollutants through the highly permeable surface strata into the groundwater. The Villages Inc. designed the system in this manner in response to concerns voiced by the Department of Environmental Protection during the DRI process regarding potential pollutant loading of the aquifer at the retention pond sites. Furthermore, by distributing the accumulated stormwater - through the irrigation system - over a wider expanse of vegetated land surface, a greater degree of water quality treatment will be achieved than if the stormwater were simply permitted to percolate directly through the pond bottom. There is no reasonable expectation that pollutants will be discharged into the aquifer from the lined ponds. If dry ponds were used, there would be an accumulation of pollutants in the pond bottom. These measures provide reasonable assurances that there will be no adverse impact on the quality of receiving waters. Water Quantity Impacts With regard to the use of lined retention ponds, as part of the Villages Inc.’s stormwater system and the impact of such ponds on water quantity, the evaporative losses from lined ponds as opposed to unlined ponds is a differential of approximately one (1) inch of net recharge. The acreage of the lined ponds - even measured at the very top of the pond banks - is only 445 acres. That differential, in terms of a gross water balance, is not significant, in view of the other benefits provided by the lined ponds. As part of the project, wetlands will be created and expanded and other water bodies will be created. After rainfalls, these unlined ponds will be filled with water and will lose as much water through evaporation as would any other water body. The design proposed by the Villages Inc., however, will distribute the accumulated stormwater across the project site through the irrigation of vegetated areas. The documentation submitted by the Villages Inc. establishes that the ERP will not cause adverse water quantity impacts. The Villages Inc. has carried its burden as to this permitting criterion. Flooding, Surface Water Conveyance, and Storage Impacts Parts of the project are located in areas designated by the Federal Emergency Management Administration (FEMA) as 100-year flood zones. Specifically, these areas are located along Lake Miona, Black Lake, between Black Lake and Cherry Lake, and at some locations south of Black Lake. Under the District’s rules, compensation must be provided for any loss of flood zone in filled areas by the excavation of other areas. The District has determined, based upon the documentation provided with the Villages Inc.’s application, work on the site will encroach on 871.37 acre feet of the FEMA 100-year flood zone. However, 1,051.70 acre feet of compensating flood zone is being created. The Villages Inc. proposes to mitigate for the loss of flood zone primarily in the areas of Dry Prairie and Cherry Lake. At present, Cherry Lake is the location of a peat mining operation authorized by DEP permit. Mining has occurred at that site since the early 1980s. The flood zone mitigation proposed by the Villages Inc. provides reasonable assurance that it will sufficiently compensate for any loss of flood basin storage. The Villages Inc.'s project provides reasonable assurance that it will neither adversely affect surface water storage or conveyance capabilities, surface or groundwater levels or surface water flows nor cause adverse flooding. Each of the 45 retention ponds to be constructed on-site will include sufficient capacity, above the top of the pond liner, to hold a 100-year/24-hour storm event. This includes stormwater drainage from off-site. In addition, these ponds are designed to have an extra one foot of freeboard above that needed for the 100-year/24-hour storm, thus providing approximately an additional 100 acres of flood storage beyond that which will be lost through construction on-site. Furthermore, the Villages Inc. has proposed an emergency flood plan. In the event of a severe flood event, excess water will be pumped from Dry Prairie, Cherry Lake, and Lake Miona and delivered to the retention ponds and to certain golf course fairways located such that habitable living spaces would not be endangered. Environmental Impacts and Mitigation There are 601 acres of wetlands and surface waters of various kinds in the Villages Inc.’s project area. Forty-one acres of wetlands will be impacted by the work that is authorized under the ERP. Each of these impacted wetlands, along with the extent of the impact, is listed in the ERP. The impacts include both fill and excavation and all will be permanent. When assessing wetland impacts and proposed mitigation for those impacts, the District seeks to ensure that the activities proposed will not result in a net loss of wetland functionality. The object is to ensure that the end result will function at least as well as did the wetlands in their pre-impact condition. Functional value is judged, at least in part, by the long term viability of the wetland. While small, isolated wetlands are not completely without value, large wetland ecosystems – which are less susceptible to surrounding development – generally have greater long-term habitat value. The District’s policy is that an applicant need not provide any mitigation for the loss of habitat in wetlands of less than 0.5 acre, except under certain limited circumstances, including where the wetland is utilized by threatened or endangered species. Some wetlands that will be impacted by the Villages Inc.’s project are of high functional value and some are not as good. The Villages Inc. proposes a variety of types of mitigation for the wetlands impacts that will result from its project, all of which are summarized in the ERP. In all, 331.55 acres of mitigation are proposed by the Villages Inc. First, the District proposes to create new wetlands. Approximately 11 acres of this new wetland will consist of a marsh, which is to be created east of Cherry Lake. Second, it proposes to undertake substantial enhancement of Dry Prairie, a 126-acre wetland. Currently – and since at least the early nineties – Dry Prairie received discharge water from the peat mining operation at Cherry Lake. Without intervention, when the mining operations stop, Dry Prairie would naturally become drier than it has been for several years and would lose some of the habitat function that it has been providing. The Villages Inc.’s proposed enhancement is designed to match the current hydroperiods of Dry Prairie, thus ensuring its continued habitat value. Third, the Villages Inc. has proposed to enhance upland buffers around wetlands and surface waters by planting natural vegetation, thus providing a natural barrier. Placement of these buffers in conservation easements does not provide the Villages Inc. with mitigation credit, since a 25-foot buffer is required anyway. However, the District determined that the enhancement of these areas provided functional value to the wetlands and surface waters that would not be served by the easements alone. Fourth, the Villages Inc. will place a conservation easement over certain areas, including a 1500-foot radius preserve required by the Fish and Wildlife Conservation Commission (FWCC) around an identified eagles’ nest. These areas will also be used for the relocation of gopher tortoises and, if any are subsequently located, of gopher frogs. While the Villages Inc. is also performing some enhancement of this area, it will receive no mitigation credit for such enhancement – which was required to meet FWCC requirements. However, since the conservation easement will remain in effect in perpetuity, regardless of whether the eagles continue to use the nest, the easement ensures the continued, viability of the area’s wetlands and provides threatened and endangered species habitat. In order to provide additional assurances that these mitigation efforts will be successful, the District has included a condition in the proposed permit establishing wetland mitigation success criteria for the various types of proposed mitigation. If these success criteria are not achieved, additional mitigation must be provided. With the above described mitigation, the activities authorized under the ERP will not adversely impact the functional value of wetlands and other surface waters to fish or wildlife. The Villages Inc. has met its burden of providing reasonable assurances relating to this permit criterion. Capability of Performing Effectively The Villages Inc. has also provided reasonable assurances that the stormwater management system proposed is capable of functioning as designed. The retention ponds proposed are generally of a standard-type design and will not require complicated maintenance procedures. In its assessment of the functional capability of the system, the District did not concern itself with the amount of stormwater that the system might contribute for irrigation purposes. Rather, it focused its consideration on the stormwater management functions of the system. The question of the effectiveness of the system for irrigation purposes is not relevant to the determination of whether the Villages Inc. has met the criteria for permit issuance. Consequently, the record establishes that the documentation provided by the Villages Inc. contains reasonable assurances that the stormwater system will function effectively and as proposed. Operation Entity The Villages Inc. has created Community Development District No. 5 (CDD No. 5), which will serve as the entity responsible for the construction and maintenance of the stormwater system. CDD No. 5 will finance the construction through special revenue assessment bonds and will finance maintenance through the annual assessments. Similar community development districts were established to be responsible for earlier phases of the Villages Inc. The ERP includes a specific condition that, prior to any wetlands impacts, the Villages Inc. will either have to provide the District with documentation of the creation of a community development district or present the District with a performance bond in the amount of $1,698,696.00. Since the undisputed testimony at hearing was that CDD No. 5 has, in fact, now been created, there are reasonable assurances of financial responsibility. Secondary and Cumulative Impacts The Villages Inc.’s application also provides accurate and reliable information sufficient to establish that there are reasonable assurances that the proposed stormwater system will not cause unacceptable cumulative impacts upon wetlands or other surface waters or adverse secondary impacts to water resources. The system is designed in a manner that will meet water treatment criteria and there will be no secondary water quality impacts. Further, the use of buffers will prevent secondary impacts to wetlands and wetland habitats and there will be no secondary impacts to archeological or historical resources. In this instance, the stormwater system proposed by the Villages Inc. will function in a manner that replaces any water quantity or water quality functions lost by construction of the system. In its assessment of the possible cumulative impacts of the system, the District considered areas beyond the bounds of the current project, including the area to the south that is currently being reviewed under the DRI process as a substantial deviation. The District’s environmental scientist, Leonard Bartos, also reviewed that portion of the substantial deviation north of County Road 466A, in order to determine the types of wetlands present there. Furthermore, the District is one of the review agencies that comments on DRI and substantial deviation applications. When such an application is received by the District’s planning division, it is routed to the regulatory division for review. The District includes its knowledge of the DRIs in its determination that there are no cumulative impacts. Reasonable assurances have been provided as to these permitting criteria. Public Interest Balancing Test Because the proposed stormwater system will be located in, on, and over certain wetlands, the Villages Inc. must provide reasonable assurances that the system will not be contrary to the public interest. This assessment of this permitting criteria requires that the District balance seven factors. While the effects of the proposed activity will be permanent, the Villages Inc. has provided reasonable assurances that it will not have an adverse impact on the public health, safety, or welfare; on fishing or recreational values; on the flow of water; on environmental resources, including fish and wildlife and surface water resources; or on off-site properties. Furthermore, the District has carefully assessed the current functions being provided by the affected wetland areas. With respect to historical or archeological resources, the Villages Inc. has received letters from the Florida Department of State, Division of Historical Resources, stating that there are no significant historical or archeological resources on the project site that is the subject of this permit proceeding. Thus, the evidence establishes reasonable assurances that the Villages Inc.'s stormwater system will not be contrary to the public interest. Additionally, the District and Applicant presented uncontroverted evidence that the proposed project will not adversely impact a work of the District, and that there are no applicable special basin or geographic area criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered issuing Water Use Permit Nos. 20012236.000 and 20012239.000 and Environmental Resource Permit No. 43020198.001, in accordance with the District’s proposed agency action. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002.
The Issue The issue concerns the entitlement of GJPS Lukas, Inc. to be granted a consumptive use of water permit from the St. Johns River Water Management District. See Chapter 373, Florida Statutes, and Chapter 40C-2, Florida Administrative Code.
Findings Of Fact On December 7, 1990, the Applicant applied for a consumptive use of water permit under application no. 2-127-0808AN as submitted to St. Johns. The Applicant asked that it be allowed to withdraw water from the Floridian aquifer to irrigate a 240 acre sod farm by the use of four wells and a pipeline ditch irrigation system. This was a new use. On January 9, 1991, St. Johns prepared a technical staff report recommending approval of the application. Petitioner was provided notice of this pending disposition on January 15, 1991 leading to his protest to the grant of the permit. Petitioner's property is adjacent to the Applicant's property. Petitioner has a well which he uses for domestic water needs which is in the vicinity of the proposed project. He also has a commercial fish operation with a number of fish ponds including fresh water ponds. Both these uses may potentially be affected by the proposed consumptive water use contemplated by the Applicant. St. Johns calculated that the irrigation of 240 acres of sod, by calculation using the modified Blaney-Criddle formula pertaining to evapotranspiration, calls for a maximum extraction of 169.4 million gallons a year. In any one month the amount withdrawn should not exceed 37.4 million gallons. The Floridian aquifer at the place where the Applicant proposes to draw water is capable of the production of 169.4 million gallons of water per year and 37.4 million gallons per month without promoting environmental or economic harm. Extraction of this water for purposes of irrigation is an acceptable arrangement in that no wastewater treatment plants are within a five mile radius of the site of the proposed use. Therefore it would not be economically, technically or environmentally feasible for the Applicant to use reclaimed wastewater as a source for its irrigation needs. The aquifer in that area is stable. There was no showing in the hearing by competent evidence that saline water intrusion problems now exist in the area of the proposed site of withdrawal. There was no showing that the withdrawal of as much as 169.4 million gallons per year would cause a saline water intrusion problem. The fields where the Applicant intends to apply the extracted water for irrigation purposes are surrounded by a system of ditches and water control structures to confine the water as applied to the sod and any mixing of that water with any surface or subsurface waters that are contributed by rain events. The ditches and control structures keep the water on the property and prevent flooding downgradient of the subject property. As a consequence flood damage on adjacent properties is not to be expected. On a related issue, the ditches and control structures will prevent water from discharging into receiving bodies of water and thereby degrading water in those receiving bodies such as the fish ponds operated by the Petitioner. The water quality of the Floridian aquifer will not be harmed by the activities of the Applicant in withdrawing this water. In the worse circumstances the well used by the Petitioner will be affected by the Applicant extracting the water from the aquifer to the extent of .25 to .4 drawdown in feet in the well the Petitioner uses. This is not a substantial impediment to the Petitioner's ability to withdraw needed water from the well he uses. The Floridian aquifer in the area in question is semi-confined. The four wells that would be used in withdrawing water for the Applicant's purposes will extract the water at 110 feet below the surface. Between that level and the surface are three confining areas of clay totaling approximately 40 feet in thickness. Those confining units of clay would protect the water at the surface when the Applicant withdraws water and induces a gradient. In particular, the nature of the stratification in the soils in the area in question and the topography are such that the Petitioner's fish ponds, when taking into account the distance between the Applicant's operation and those fish ponds, the clay confining units and the gradient between the Applicant's property and the Petitioner's fish ponds, would not lead to a reduction in the water levels of the Petitioner's fish ponds when the water was extracted by the Applicant. The proposed use by the Applicant would not require invading another use reserved by a permit issued from St. Johns. St. Johns has not established minimum levels or rates of flow for the surface water in the area where the Applicant proposes to extract the water. Nor has St. Johns established a minimum level for a water table aquifer or a minimum potentiometric surface water for an aquifer in the area where the Applicant proposes to extract the water. The surficial aquifer water table beneath the property where the Applicant intends to apply the extracted water should not be raised inordinately should the Applicant follow the best management practice as recommended as special condition No. 9 to the Consumptive Use Technical Staff Report pertaining to this project. Nonetheless if the water table beneath the Applicant's property were to be raised to a level which is too high or if the activities by the Applicant would result in excessive surface water runoff the ditches and water control structures that isolate the Applicant's property would prevent the water level in the Petitioner's fish pond from being increased by the Applicant's proposed activities. The application of the extracted water and the expected flow pattern of water applied to the surface and control of that water is set out in St. Johns' Exhibit No. 5 and described in the testimony of Jack Caldwell Lawrence, Jr., employee of St. Johns and an expert in geology and hydrology. See pages 61 and 62 of the transcript. Concerning water quality in the Petitioner's fish pond, it will not be affected by the Applicant's proposed activities in extracting the water. The gradients and distances between the Petitioner's fish pond and the Applicant's fields do not allow surface water or water in the surficial aquifer, which is groundwater above the confining clay unit, to flow from the Applicant's fields into the Petitioner's fish ponds. Again the ditches and control structures related to the project offer additional protection against a compromise to the water quality in the Petitioner's fish ponds. The Technical Staff Report on this project is an apt description of the project and the necessary conditions to granting a permit which would protect the public and environment. One modification has been made to that report and that modification is appropriate. It changes the intended disposition from one of allowing surface water from the onsite management system to be used as the primary irrigation supply with the Floridian aquifer serving as a supplementary source to one in which the Applicant would not use the onsite management system as a water supply source but would use the onsite management system simply as a discharge holding area.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which approves the application for consumptive use of water subject to the conditions set forth in the Technical Staff Report, excepting the need to have the Applicant utilize water from the onsite management system as the primary source of irrigation of its sod. DONE and ENTERED this 4th day of November, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 November, 1991. APPENDIX TO RECOMMENDED ORDER The following discussion is made of the suggested facts set forth in the proposed recommended orders. Petitioner's Facts Paragraphs 1-6 are subordinate to facts found. Concerning Paragraph 7, Petitioner does not have standing to take issue with the quality of notice provided to other adjacent landowners. As to Paragraph 8, the witness had sufficient understanding of the location and nature of the surficial or sand aquifer and the clay confining units to have his testimony credited. As to Paragraph 9 the fact that the witness is unaware of the exact depth of the Petitioner's fish pond does not cause his testimony to be disregarded in deciding that the fish ponds would not be negatively impacted by the activities contemplated in this permit application. As to Paragraph 10, this proposed fact is inconsequential given the de novo nature of this proceeding. As to Paragraph 11, see discussion of Paragraph 7. As to Paragraph 12, it is rejected. As to Paragraph 13, that knowledge was not necessary in determining the outcome here. As to Paragraph 14, it is accepted in hypothetical terms, however, no showing was made that chlorides would increase in this instance and adversely affect the Petitioner's fish based upon the evidence adduced at hearing. As to Paragraph 15, the soil samples from Petitioner's property are inclusive and less reliable that the description of soil in the general area as set forth by the witness for St. Johns. COPIES FURNISHED: Clayton D. Simmons, Esquire Stenstrom, Mackintosh, Julian, Colbert, Whigham and Simmons, P.A. 200 West First Street, Suite 22 Sanford, FL 32772-4848 Michael D. Jones, Esquire 996 Westwood Square, Suite 04 Oviedo, FL 32765 Michael D. Jones, Esquire Post Office Box 3567 Winter Springs, FL 32708 Eric T. Olsen, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429
Findings Of Fact The subject application requests a water use permit from the Central and Southern Florida Flood Control District (FCD) for the supplemental irrigation of 145 acres of citrus lands located in Orange County. Received into evidence at the hearing were the public notice of hearing appearing in the Sentinel Star, permit application number 21424 with an attached report and the Staff Report of the FCD, prepared by Nagendra Khanal. The applicant requested an annual allocation of water in the amount of 120.15 acre-feet or 9.94 inches per year, for a period of twenty (20) years. The Staff Report recommends the issuance of a permit for said amount, with maximum monthly pumpages not to exceed 49.8 acre-feet or 4.13 inches, the permit to expire on January 15, 1978. Several further special provisions were recommended on pages 4 & 5 of the Staff Report, which report is attached hereto. There is no dispute between the applicant and the FCD over the technical aspects of the Staff Report. The protests of the applicant center around the length of the permit and some of the special provisions recommended in the Staff Report, which the applicant feels are vague and ambiguous. Mr. James A. Hinson, the applicant's corporate secretary, felt that the FCD had sufficient data and statistics as to the water resources and agricultural usage within the area to sustain the granting of a twenty year permit. It was further felt that the issuance of a two-year permit for the purpose of gathering information as to the quantity of use would tend to prompt higher usage and even lead to falsification of pumpage records on the part of agricultural users so as to assure the issuance of future permits. The applicant was also concerned with the costs of applying for another permit in two years. Mr. Nagendra Khanal, a hydrologist with the FCD, explained that the purpose of the two-year permit was to obtain information from agricultural users in the area as to the amount of water used and the effect of such usage on the Florida aquifer system. Since the outset of regulatory provisions, the FCD has set the same termination date for each permit for agricultural use within each of the basins. At that expiration time, the pumpage records for all users in the area will be established and present experimental estimates can then be compared with actual usage. Little is known by the FCD about how the Florida aquifer system operates and the data presently in use are experimental. Since all permits within each basin will expire on the same date, the entire basin can then be evaluated at one point in time. It was felt that if falsification of pumpage records were to occur, it could probably be detected by data currently available to the FCD. It was further opined by Mr. Khanal that at, the expiration date of all permits issued in each basin, an automatic conversion into new permits would occur at little or no cost to the applicant. With regard to the special provisions recommended in the Staff Report, Mr. Hinson expressed concern over the manner of compliance. Specifically, he desired more information on the type of equipment or devises required by the FCD when it calls for "minimum head pressures", and "a measuring device on each of the three wells." He also desired information as to the times of year the water quality analyses were to be performed. Mr. Khanal explained that no regulatory criteria had been established by the FCD with regard to pumpage and that the minimum type of measuring device, such as a time clock, on each of the wells would suffice. Further specifications will be supplied to the applicant upon request. It was explained by Khanal that the water quality analyses should be performed once before the rainy season (at the end of May) and once after the rainy season (at the end of October). There was some confusion over the inclusion of the parameter of "specific conductivity" within the definition of a standard complete water quality analysis. Finally, Mr. Khanal listed two amendments to be made in the Staff Report. On page 2, under "B. Existing Facilities", "3,500 gpm" should read "3,600 gpm." The last item on the chart on page 3 of the Staff Report should read "2 in 10 Year Drought" in lieu of "1 in 10 Year Drought."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Application No. 21424 be granted and that a permit be issued in accordance with the recommendations and provisions set forth in the Staff Report, as amended. Due to the apparent confusion over the inclusion of "specific conductivity" as a parameter to be included within the definition of a standard complete analysis, it is further recommended that the Staff make further inquiry into its necessity. If the Staff then concludes that "specific conductivity" is necessary to obtain a complete water quality analysis, it is recommended that it remain on the list of parameters. Respectfully submitted this 5th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR 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 5th day of March, 1976 COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Akerman, Senterfitt, Eidson and Wharton 17th Floor CNA Building Orlando, Florida Stephen A. Walker, Esquire Post Office Box V West Palm Beach, Florida 33402
Findings Of Fact Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.
Recommendation It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property. These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District P. 0. Box 457 Brooksville, Florida 33512 Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court Glenview, Illinois 60025
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
The Issue The issue is whether Respondent's water use permit should be revoked for nonuse of the permit for a period of two years or more.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The District is a state agency charged with the responsibility of issuing water use permits under Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40B- 2 for the geographic area under its statutory jurisdiction. Alachua County is within that geographic jurisdiction. Respondent is a Florida corporation with offices at 700 Northwest Cheeota Avenue, High Springs, in northern Alachua County. It owns approximately 700 acres in High Springs (west of Interstate Highway 75) on which it operates a church retreat and summer camping and recreational facility known as Camp Kulaqua. The property surrounds, and is contiguous to, Hornsby Spring, a first-order magnitude spring (having a flow rate of 100 CFS or greater) which, under normal conditions, discharges into the nearby Santa Fe River. Hornsby Spring is one of 296 documented springs within the District's jurisdiction. After receiving an overture from a representative of a private water bottling company, on September 28, 1999, Respondent filed an application for a General Water Use Permit in Township 7 South, Range 17 East, Section 26, in High Springs. In its application, Respondent represented that it desired a daily allocation of 2,000,000 gallons; that it intended to install two 12-inch wells, each having a capacity of 1,400 gallons per minute, just east of, and upgradient from, Hornsby Spring; and that all water withdrawals would be used in conjunction with a privately-owned commercial spring water bottling facility to be located on its property. The application also represented that the facility would employ 36 persons and operate 168 hours per week. The application was reviewed by a former District hydrogeologist, William H. Kirk. During the review process, and in response to Mr. Kirk's request for more information, Respondent provided a comparison of the requested allocation with the overall flow of Hornsby Spring. This was because Mr. Kirk was concerned that the requested allocation was "a bit high," and he wanted to ensure that the issuance of the permit would not cause harm to, or adversely affect, the water resources. Under a professional guideline that Mr. Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact." Notwithstanding Mr. Kirk's use of this guideline, the District points out that there is no District rule or policy sanctioning the ten percent rule, and at hearing it denied that this standard is used by the District in assessing water use applications. Further, the Permit itself does not refer to a relationship between spring flow and the size of the allocation. Even so, this analysis was considered by Mr. Kirk in determining whether Respondent had given reasonable assurance that the spring would not be impacted. In its response to the request for additional information, Respondent reduced its requested allocation to 750,000 gallons per day and indicated that if a bottling plant were to be constructed on its property, approximately 700,000 gallons of the total allocation would be consumed in "bulk transfer and bottling," with the remainder for camp use. More specifically, Respondent indicated that it would allocate 490,000 gallons per day for bulk transport, 210,000 gallons per day for spring bottling water, and 50,000 gallons per day for incidental uses at its property. By reducing the allocation from 2,000,000 gallons per day to 750,000 gallons per day, Respondent's requested average daily allocation represented only 0.4 percent of the average daily spring flow as measured over the last 28 years. The reduced allocation satisfied Mr. Kirk's concern that Respondent demonstrate a reasonable demand and a reasonable need for that allocation, and he recommended approval of the application.2 On February 25, 2000, the District approved the application and issued Water Use Permit No. 2-99-00130 (Permit).3 The Permit authorizes an average daily withdrawal of 0.7500 million gallons per day (750,000 gallons per day) or a maximum daily withdrawal and use of 0.7500 million gallons per day with an annual allocation not to exceed 273.750 million gallons (273,750,000 gallons) per calendar year in conjunction with the operation of a privately-owned water bottling plant. The Permit expires on February 25, 2020. After the Permit was issued, under the regulatory process in place, Respondent was required first to obtain a permit for a temporary test well which would be used to collect information concerning the site of the proposed activity, and to then file an application for permits authorizing the construction and operation of the two 12-inch production wells. The Permit contains a number of conditions, two of which require a brief comment. First, Condition No. 2 provides that "[t]his permit is classified as unconfined [F]loridan aquifer for privately owned bottled water plant." This means that all water withdrawals must be made from the unconfined Floridan aquifer, as opposed to the spring head of Hornsby Spring. (Respondent's proposed siting of its two production wells 660 yards east of the spring is consistent with this provision.) Second, Condition No. 4 provides that "[t]he permittee shall submit daily pumpage records on a monthly basis to the [District]." Pumpage reports are filed by permittees so that the District can determine whether the permit is actually being used, and if so, to ensure that the amount of water being withdrawn under the permit does not exceed the authorized allocation. As it turned out, pumpage reports were never filed by Respondent. (However, the record shows that the District has never strictly enforced this requirement for any permittee.) In late 2002, the District staff undertook a review of the nine water bottling permit holders within its jurisdiction, including Respondent. That category of permit holders was selected for review because of the small number of permits and the limited resources of the District staff. (In all, the District has probably issued several thousand permits to other types of users.) On February 4, 2003, the District served its Complaint under the authority of Sections 120.60 and 373.243, Florida Statutes, and Florida Administrative Code Rule 40B-2.341. As grounds for revoking the permit, the District alleged that there was "non-use of the water supply allowed by the permit for a period of two (2) years or more." Although Respondent contends that it should have been given an opportunity to correct the nonuse allegation before the Complaint was issued, nothing in the Administrative Procedure Act or District rules requires that this be done. Until the issuance of the Complaint against Respondent in early 2003, and similar Complaints against eight other permit holders at the same time, the District had never invoked this statutory provision.4 There is no evidence to support Respondent's contention that the Complaints were issued for "purely political reasons." On March 4, 2003, Respondent requested a formal hearing challenging the District's proposed action. In the parties' Pre-Hearing Stipulation, the issues have been broadly described as follows: whether Section 373.243(4), Florida Statutes, is to be strictly or liberally construed; whether Respondent's nonuse is based upon extreme hardship for reasons beyond its control; and whether the District is equitably estopped from permit revocation. (According to the District, even if the Permit is revoked, such revocation is without prejudice to Respondent reapplying for, and receiving, another permit so long as it meets all applicable requirements.) Equitable Estoppel Respondent first contends that the District is estopped from revoking its Permit on the theory that, under the circumstances here, the doctrine of equitable estoppel applies. For that doctrine to apply, however, Respondent must show that the District made a representation as to a material fact that is contrary to a later asserted position; that Respondent relied upon that representation; and that the District then changed its position in a manner that was detrimental to Respondent. See, e.g., Salz v. Dep't of Admin., Div. of Retirement, 432 So. 2d 1376, 1378 (Fla. 3d DCA 1983). The District issued Respondent's Permit on the condition that Respondent operate in conformity with all pertinent statutes and regulations. This finding is consistent with language on the face of the Permit, which states that the Permit "may be permanently or temporarily revoked, in whole or in part, for the violation of the conditions of the permit or for the violation of any provision of the Water Resources Act and regulations thereunder." Respondent relied on the District's representation that it could use the Permit so long as it complied with all statutes and regulations. In reliance on that representation, in addition to staff time, after its Permit was issued, Respondent expended "somewhere around" $70,000.00 to $74,000.00 for conducting water quality testing; sending cave divers underground to ascertain the correct location of the portion of the aquifer on which to place its production wells; drilling a 6-inch test well in August 2000; obtaining the City of High Springs' approval in March 2000 for industrial zoning on a 10-acre tract of land on which to site a "water plant"; and engaging the services of a professional who assisted Respondent in "seeking out businesses and getting the right qualifications of the spring water to make sure that it was a marketable water." The District has never asserted anything different from its original position: that if Petitioner complied with all statutes and rules, it could continue to lawfully make water withdrawals under its Permit. The issuance of the Complaint did not represent a change in the District's position. Because a change in position in a manner that was detrimental to Respondent did not occur, the necessary elements to invoke the doctrine of equitable estoppel are not present. Was the Permit Used? A preliminary review by District staff indicated that Respondent had never filed the daily pumpage reports on a monthly basis and had never requested permits authorizing the construction of the two 12-inch production wells. These preliminary observations were confirmed at final hearing, along with the fact that Respondent has never entered into an agreement with a water bottling company (although draft agreements were once prepared); that Respondent has never constructed a water bottling facility; and that no operations were ever conducted under the Permit. Therefore, the evidence supports a finding that Respondent did not use its Permit for the two-year period after it was issued, as alleged in the Complaint. Respondent's contention that the evidence fails to support this finding belies the evidence of record. In an effort to show that it actually used the Permit, Respondent points out that in August 2000 it applied for, and received a permit to construct, an unmetered 6-inch test well in association with its General Water Use Permit. (Respondent sometimes erroneously refers to the test well as a test production well. This is incorrect as the well is a test well, and not a production well.) After the test well was installed, at some point Respondent says it began withdrawing approximately 50,000 gallons per day of water from that well for incidental uses associated with the operation of Camp Kulaqua.5 These withdrawals were made on the assumption that the test well permit fell under the broad umbrella of the General Water Use Permit. (Respondent also has a permitted 6- inch diameter well and an unregulated 4-inch well on its premises, both of which are used for water supply needs at Camp Kulaqua.) It is true, as Respondent asserts, that its Permit authorized incidental withdrawals of up to 50,000 gallons per day for unspecified uses at Camp Kulaqua. However, these withdrawals are authorized under the General Water Use Permit and not the test well permit. The two permits are separate and distinct. On the one hand, a test well is intended to be temporary in nature and used only for the purpose of test well development and collecting information regarding the height of the aquifer and water quality at the site of the proposed activity. Conversely, withdrawals for any other purpose, even incidental, must be made from the production wells, which are only authorized by the General Water Use Permit. Before a test well can be used for normal consumptive purposes, the permit holder must seek a modification of the permit to include it as a part of its general water use permit. Here, no such modification was sought by Respondent, and no authorization was given by the District. Therefore, Respondent's incidental water uses associated with its test well cannot be counted as "uses" for the purpose of complying with the use requirement in Section 373.243(4), Florida Statutes. In light of the District's credible assertion to the contrary, Respondent's contention that it is common practice to lawfully withdraw water from a test well for incidental consumptive purposes has been rejected. (It is noted, however, that the District has not charged Respondent with violating the terms of its test well permit.) Extreme Hardship Under Section 373.243, Florida Statutes (which was enacted in 1972), the District is authorized to revoke a water use permit "for nonuse of the water supply allowed by the permit for a period of 2 years." However, if the user "can prove that his or her nonuse was due to extreme hardship caused by factors beyond the user's control," revocation of the permit is not warranted. The phrase "extreme hardship caused by factors beyond the user's control" is not defined by statute or rule. In the context of this case, however, the District considers an extreme hardship to occur under two scenarios. First, if the aquifer level has dropped so low due to drought conditions that a permit holder cannot access the water through its well, its nonuse is excusable. Alternatively, if an emergency order has been issued by the District directing permit holders (including Respondent) to stop pumping due to certain conditions, an extreme hardship has occurred. (Presumably, a severe water shortage would precipitate such an order.) In this case, the District issued a water shortage advisory, but not an emergency order, due to a "severe drought," indicating that users could still pump water, but were encouraged to voluntarily reduce their usage. This advisory remained in effect from the summer of 1998 until the spring of 2003, when a severe drought ended. However, no emergency order was ever issued by the District. Respondent contends that its nonuse was due to an extreme hardship caused by factors beyond its control. More specifically, it argues that a severe drought occurred in Alachua County during the years 1998-2003, and that under these conditions, federal regulations prevented it from withdrawing water for bottling purposes, which was the primary purpose for securing a permit. Further, even if it had withdrawn water during these drought conditions, such withdrawals could have adversely impacted Hornsby Spring and constituted a violation of a District requirement that water resources not be adversely impacted. Because an investment of several hundred thousand dollars was required to drill and install the two production wells, Respondent contends it was not financially prudent to make that type of investment and begin operations until normal spring conditions returned. These contentions are discussed in greater detail below. Around September 7, 1999, a representative of a water bottling company first approached Respondent about the possibility of the two jointly operating a water bottling plant and/or transporting water in bulk from Respondent's property. Prompted by this interest, less than three weeks later Respondent filed its application for a water use permit (although at that time it did not mention on the application that off-site bulk transfers would occur), and a permit was eventually issued in February 2000. Later, and through a professional firm it employed, Respondent had discussions with representatives of several bottling companies, including Great Springs Waters of America (Great Springs) and Perrier Group of America. Apparently, these more serious discussions with a potential suitor did not take place until either late 2000 or the spring of 2001. Periodic measurements taken by District staff at Hornsby Spring reflected natural drought conditions from April 2000 to April 2003. As noted earlier, this was the product of a "severe drought" which took place between the summer of 1998 and the spring of 2003; the drought was one of a magnitude that occurs only once in every 50 to 100 years. During the years 2000 through 2002, the spring had zero flow or was barely flowing much of the time.6 Had Respondent pumped water during 20 out of the 24 months after the Permit was issued, it could have potentially violated the requirement that it not harm Hornsby Spring. This fact is acknowleged by a District witness who agreed that if the "spring is not flowing, . . . [pumping] would have an [adverse] impact." Even as late as October 2003, the spring had tannic discoloration caused by the lengthy drought conditions. The parties agree, however, that there is no water shortage in the District at the present time. To illustrate the difficulty that it experienced in obtaining a joint venture partner for water bottling purposes, Respondent established that in the spring of 2001, a Great Springs representative visited the site when the spring was "barely flowing." For obvious reasons, Respondent could not "bring a party there who would want to enter into a business [agreement]" under those conditions. These same conditions remained in effect during most of the two year period. The District points out, however, that even though the spring was low or barely flowing, so long as the aquifer itself was not too low, Respondent could still withdraw water from the aquifer, since Condition 2 of the Permit authorizes withdrawals from the aquifer, and not the spring. The reason for this apparent anomaly is that when a spring ceases to flow, the aquifer has simply dropped below the level of the spring vent; even under these circumstances, however, there may still be a substantial quantity of water in the aquifer available for pumping. Assuming that it could still lawfully pump water when the spring was dry or barely flowing without causing adverse impacts to the spring, Respondent was still subject to federal regulations which govern the bottling of spring water. See Title 21, Part 165, C.F.R. For spring water to be marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi) requires that the water "be collected only at the spring or through a bore hole tapping the underground formation feeding the spring." This means that the bore hole had to be physically connected with the cave system feeding Hornsby Spring or produce water of the same quality as that discharging from the spring. The regulation goes on to provide that "[i]f spring water is collected with the use of an external force [such as by a pump], water must continue to flow naturally to the surface of the earth through the spring's natural orifice." While this regulation obviously does not prohibit Respondent from pumping water, since that authority lies within the District's exclusive jurisdiction, it does provide that in order to use spring water for bottling purposes, the water must continue to flow naturally from the aquifer to the spring. If it does not, the water cannot be used for this purpose. Because Hornsby Spring had zero flow for parts of 2001 and 2002, and severely reduced flows during most of the other time during the two-year period ending February 2002, Respondent was effectively prevented by the foregoing regulation from using the water for bottling purposes. Therefore, Respondent's nonuse was due to extreme hardship caused by factors beyond its control -- a severe drought lasting throughout the two-year period after the Permit was issued, and federal regulations which prevented it from using water for the purpose for which the Permit was issued. Thus, the nonuse is excusable.
The Issue The parties have raised myriad issues hare. Petitioner has alleged being capriciously and arbitrarily denied its permit because similar treatment plants have been licensed nearby. The parties disagree over whether local Lake County Pollution Control Board rules are applicable to Petitioner's plant. If the rules are applicable, they disagree over their interpretation. The parties further disagree over whether Petitioner has pending an application for a waste water treatment plant operating permit. It is this last issue which is discussed below because it is dispositive of the case.
Findings Of Fact Petitioner operates a waste water treatment plant in Lake County, Florida which serves four motels at the intersection of U.S. Highway 27 and SR 19 immediately to the south of Interchange 27 on the Florida Turnpike. On October 27, 1972, DER issued a construction permit to Petitioner to construct the plant at a design capacity of 250,000 gallons per day (gpd). The treated effluent was proposed to be discharged via a spray irrigation system to the ground water on Petitioner's site. The plant has never operated at capacity. Its normal volume has ranged from between a low of 40,000 gpd to a peak of 140,000 gpd. Petitioner's plant is situated on a 12.5 acre site over a clay hard pan. The hard pan which is immediately below the ground surface prevents adequate percolation of the plant's effluent down to the underlying ground water. During periods of heavy rain the effluent from the plant has breached a retaining dike and flowed directly into a marsh area known as the Little Everglades to the north. Petitioner has submitted four permit applications to the Department. The first, submitted in September of 1972 was for the construction permit already mentioned. The next applications dated October 22, 1973, was for an operation permit. The application indicated that there would be no discharge to surface waters but there would be a discharge to ground waters. The application also indicated that the availability of space for the expansion of the plant was limited to the site at that time. Petitioner later purchased additional land not reflected in this application. The operation permit was never granted by the Respondent. As stated by Mr. Potter, President of Lake County Utilities, Inc., "In the fall of 1973, I made an application as engineer for the utility company to the Florida DPC [Department of Pollution Control] and to Lake County for an operation permit. That permit was denied by the Department on the ground that we had not satisfied Lake County as to the total containment of our effluent." Subsequently on August 30, 1976, Petitioner submitted a construction permit application to DER for permission to add a 1.32 acre oxidation-polishing pond, to regrade and regrass the existing spray irrigation field, to construct a 0.40 acre denitrification pond and to add a nutrient uptake. No increase in the design capacity was proposed. On that application Petitioner indicated that there would be a discharge to the surface waters of the state. In answer to that part of the application which asked for proposed drainage path of the effluent Petitioner stated, "From treatment plant to 'on-site' ponds to 'on-site' grassy pond and marsh would overflow to ajacent Florida DOT [Department of Transportation] borrow pit: thence via developed drainage waste to the 'Little Everglades' swamp: then, via developed canal and ditches and through natural ponds and marshes to 'Little Lake Harris' and ultimately the Atlantic Ocean." This permit was denied by DER because the Lake County Pollution Control Board did not approve the plan. Finally on September 29, 1978, Petitioner applied for another construction permit. Thee construction would include: Construction of storm water control structures and culverts: Regrading of water and sewer plant sites; Construction of percolation pond "A" and enclosing dikes; and Construction of percolation pond "B" and enclosing dikes. This application was made in response to advice from DER that Petitioner's plant should be in a no discharge condition in order to comply with Lake County Pollution Control rules. On November 2, 1979, the Department issued a Letter of Intent to deny the last permit application because the application was deemed to be incomplete and because the further data which DER requested was not provided. In response to DER's intent to deny the construction permit Petitioner on November 20, 1979, filed its Petition for an Administrative Hearing. Petitioner does not now intend to construct the proposed facilities for which it requested the construction permit in September of 1978. The following colloquy is from the final hearing. Mr. Stephens Have you-- Can you describe briefly the nature of the changes proposed in your 1978 construction permit application? Mr. Potter 1978 construction permit application on nominally the five acre parcel to create a diked pond or lake. Mr. Stephens Uh-huh. Mr. Potter Solely that. The part on the nominally two and a half acre parcel, give or take, was to create a deep percolation pond in which I proposed digging through the clay to the sand and shell below. Mr. Stephens Uh-huh. Mr. Potter So that waters that entered that pond, A, because of its depth, would denitrify and release nitrogen contents to the atmosphere; and, the water would, because of its hydraulic head in relation to the soil below, would push its way into the soils below. Mr. Stephens Uh-huh. Mr. Potter But in the event I could not dispose of the water through that form of percolation, it would overflow into the five acre diked area. And thereby I hoped to satisfy Lake County and the D.E.R. and solve this lingering festering problem. Mr. Stephens Uh-huh. You are the Petitioner in this case. Is it your desire or intention to complete those. . .that construction? Mr. Potter Now that I have been made aware of the law, the law of Chapter four oh three, the rules of Florida D.E.R. and become clear as to the ordinances adopted by the County Commission and the Lake Pollution Board of Lake County as to Class 3-B waters, I have no intention of squandering my money, and, in effect, the money of my customers, in such a wasteful pursuit. Mr. Stephens So you're saying here under oath you don't intend to perform that work even if granted a permit? Mr. Potter Not shy of a court order. As the result of Mr. Potter's testimony on behalf of the Petitioner at the final hearing, it is found that Petitioner has withdrawn its September 1978 application for a construction permit. There is not now pending before the Department of Environmental Regulation a valid permit application for the Petitioner to operate its waste water treatment plan. On May 9, 1980 Lake County Utilities, Inc. served Petitioner's Fourth Interrogatories to Respondent which asked by Interrogatory 10: Please state when and by whom the Department of Environmental Regulation has caused field studies to be made and samples to be taken out of the waters of Lake County (and specifically the geographical vicinity of U.S. 27 - S.R. 19 - Fla. Turnpike) periodically and in a logical geographic manner so as to determine the levels of water quality of the waters as such studies and sampling is within the powers and duty of the Department as mandated by the Florida Legislature in Chapter 403 of the Laws of Florida. (emphasis in original) The Department responded: 10. The Department conducts sampling in the waters of Lake County in conjunction with individual permit applications and not on a systematic basis throughout the County. Respondent objects to this interrogatory as being irrelevant to this proceeding in that the subject permit was not denied on the basis of anticipated water quality violations, but rather, as a result of the pollution control ordinances of Lake County, Florida, which prohibit any discharge to surface waters from the subject facility, and which the Department is required to enforce pursuant to Section 403.182(6), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it Is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a Final Order dismissing the Amended Petition for Administrative Hearing without prejudice, however, to the filing of a new application by Petitioner for a waste water treatment plant operating permit. DONE and RECOMMENDED this 12th day of May, 1981, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of May, 1981.
