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 Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact."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 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 Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
The Issue The issue in this case is whether the application of Respondents Falkner to transfer and modify a Water Use Permit should be approved.
Findings Of Fact The Southwest Florida Water Management District (District) is responsible for regulation and protection of water resources in the geographic area involved in this proceeding. Since 1994, John Falkner has owned the property in Hillsborough County which is the subject of this proceeding. The Falkner property is farmed by Christopher Falkner, the owner's brother. Prior to purchasing the land, the Falkners farmed the property, also known as the Rogers farm, through a lease arrangement with the previous owner. Rose Ann DeVito owns property to the south of the Falkner property. In the time since Ms. DeVito purchased the property, the elevation of Sumner Road has been raised and culverts were replaced. A fish farm was constructed in close proximity to her property. The result of this and other development has been to direct all the water flow from the surrounding area into the stream adjacent to the DeVito property. Drainage patterns in the area of Ms. DeVito's property have been altered since she first occupied the property. A ditch along Sumner Road which used to handle runoff from her property has been blocked by a neighbor's driveway. Maintenance on the ditch, allegedly a county responsibility, is described as poor. The ditch at the rear of Ms. DeVito's property handled water flow to Bullfrog Creek until the water flow became blocked, and the water diverted onto her property. The effect is that Ms. DeVito's property often contains a large amount of water. A substantial amount of sand is visible on her property, allegedly deposited by water flow. According to Ms. DeVito, both the county and the District have blamed the Falkner farm for the water-deposited sand. Charles and Diana Booth own property adjacent and to the south of the Falkner property. From 1992 to 1994, the Booths suffered from water running off the Falkner/Rogers farm and flooding the Booth property. A flood of the Booth property in the Fall of 1994 was not caused by irrigation but was related to a ten inch rainfall event at the Falkner farm. A ten inch rainfall exceeds a 25 year storm event and would likely result in widespread flooding. The Booths' pasture, top soil and driveway were eroded by the flooding. During the two years of flooding, Mr. Booth complained on several occasions about the flooding to the Falkners' foreman, "Cleo." The complaints were not relayed to Mr. Falkner. In October 1994, Mr. Booth reported the problem to the Southwest Florida Water Management District. Soon after the complaint was made, a representative of the District inspected the property and determined that a ditch needed maintenance. Shortly thereafter, the ditch was cleaned and a berm was installed to redirect runoff away from the Booth property. There has been no further flooding of the Booth property. In October 1995, Mr. Booth became concerned that a ditch was filling with sand and would not continue to handle the runoff. After voicing his concern, a water diverter was installed in the ditch and appears to have remedied the situation. At the time the Falkners began to lease the Rogers property, an existing water use permit, numbered 206938.01, had been issued and was valid for the farm. The Falkners have applied to transfer the existing water use permit from the previous property owner. The Falkners also seek to modify the permit, increasing the total quantities which can be pumped by transferring previously approved quantities from another permit the Falkners currently hold. All of the relevant wells are within the District's Most Impacted Area (MIA) of the Tampa Bay Water Use Caution Area. The District allows a permit holder within the MIA to increase withdrawals from a well by transferring the quantities from another permitted well within the MIA. The other Falkner farm (the "301 farm") from which the quantities would be transferred is located approximately one-half mile to the south of the Rogers farm and is within the MIA. The District reviewed the application and, on September 29, 1995, issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03. The proposed permit includes special conditions requiring monthly pumping reports, water quality reports, adherence to District irrigation allotments (irrigation levels established by the AGMOD computer model) and crop reporting. In reviewing the application the District utilized the criteria set forth in Florida Administrative Code, and the Basis of Review, incorporated into the code by reference. In order to obtain a Water Use Permit, an applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water. Additionally, the applicant must provide reasonable assurances that the water use: will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; will not adversely impact offsite land uses existing at the time of the application; will not cause water to go to waste; and will not otherwise be harmful to the water resources within the District. The uncontroverted evidence establishes that the water use is reasonable, beneficial and is in the public interest. The Falkners irrigate farmland to produce agricultural products. The production of food is in the public interest. The proposed use is reasonable and beneficial. Further, uncontradicted evidence and opinions of expert witnesses establish that the proposed use will not interfere with any existing legal use of water. The applicant must provide reasonable assurances that the water use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. The evidence establishes that pumping from the Falkner wells will not adversely affect the quality of water within the aquifers from which the water is drawn. Mr. Booth asserted that he is having water quality problems, specifically with rust in his well. The Booth well is approximately 25 years old. There is no evidence that the rust is related to the Falkner pumping. The DeVito and Booth wells draw from the Intermediate aquifer. Review of the potentiometric surface map of the intermediate aquifer indicates that there is a water level variation of 17 feet between the rainy and dry seasons. The result of the variance can be "dry" wells. There are two wells on the Falkner/Rogers property relevant to this proceeding. The first (District ID number 1) is 770 feet deep, is cased to a depth of 160 feet, and opens to the Floridan aquifer. The second (District ID number 2) is 1100 feet deep, is cased to a depth of 140 feet, and opens to the Intermediate and the Floridan aquifers. A cased well does not withdraw water from the formations through which the casing is placed. For example, a well cased to a depth of 160 feet draws no water from the top of the casing (at approximately ground level) to the bottom of the casing at 160 feet. The Intermediate aquifer releases water at a much slower rate than the Floridan aquifer. Based on the type and location of the Falkner wells, the vast majority of the water pumped by the Falkners comes from the Floridan aquifer. Impacts on existing wells are calculated through computer modeling. The "MOD" flow model demonstrates impacts that will occur after 90 days of pumping at peak month levels with no recharge to the aquifer. The MOD flow model results in a conservative "worst case" projection. The MOD flow model calculation projects the drawdown at Falkner well number 1 to be approximately .9 feet. The MOD flow model calculation projects the drawdown at Falkner well number 2 to be approximately 1.4 feet. The MOD flow model calculation projects the drawdown at the Booth well to be approximately one-half foot. The impact on the DeVito well will not exceed that projected at the Booth well. District permitting criteria allow for projected MOD flow model drawdown impacts of less than five feet at existing wells. The impact possible after approval of this application falls well within the District's guidelines. The impact of pumping if the application at issue in this proceeding is approved will result in a maximum variation of one-half foot at the Booth well. The evidence fails to establish that any problems related to water quantity encountered by the Booths are related to agricultural pumping at the Falkner farms. The evidence also establishes that, based on the existing retention and drainage system, the proposed use will not adversely impact surrounding surface water bodies. A system of swales and ditches is utilized to retain the water on the farm property. The evidence fails to establish that runoff from the Falkner/Rogers farm will adversely impact surrounding surface waters if this application is approved. The applicant has provided reasonable assurances that the water use will not adversely impact offsite land uses existing at the time of the application. The evidence establishes that the runoff from the Falkner farm does not discharge directly to the stream at the rear of the DeVito property. Other agricultural property discharges into the stream adjacent to the DeVito property. There is a steady waterflow through the stream at all times, whether or not the Falkner pumps are operating. Ms. DeVito's property consists of Myakka soil, which has little capacity to absorb rainfall and generates large amounts of runoff. The altered drainage patterns in the area have resulted in substantial water on her property. The evidence in insufficient to establish that the Falkner farm pumping has resulted in flooding on Ms. DeVito's property. The evidence fails to establish that approval of the application at issue in this proceeding will cause adverse impact to the DeVito property or will result in water quality or quantity problems. The Booths are concerned that the existing drainage system will not be maintained and that increased pumping will result in their land being flooded again. The evidence fails to establish a substantial likelihood that the Falkner farm drainage system will not be maintained. The applicant has provided reasonable assurances that the water use will not cause water to go to waste. The Falkners use a semi-enclosed seep irrigation system at the Rogers farm. Irrigation is only used when necessary. Mushroom compost, humates, and plastic mulch retain moisture in the soil. A special condition of the permit requires the Falkners investigate the feasibility of tail water recovery and reuse. The applicant has provided reasonable assurances that the use will not otherwise be harmful to the water resources within the District. The permit application results in no increased withdrawal of water than is allowed under the existing permits for the Rogers and the "301" farms.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Southwest Florida Water Management District enter a Final Order granting the Falkner application and issuing permit number 206938.03. DONE and ENTERED this 26th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 26th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-5763 and 95-5764 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners Booth The Petitioners Booth proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as irrelevant or not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein. Respondents The Respondents' joint proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, cumulative. 28-29. Rejected, subordinate. 33. Rejected, subordinate. COPIES FURNISHED: Rose Ann DeVito, pro se 11001 Sumner Road Wimauma, Florida 33598 Diana P. and Charles B. Booth, pro se 10812 Sumner Road Wimauma, Florida 33598 Patricia Petruff, Esquire Dye and Scott, P.A. 1111 Third Avenue West Bradenton, Florida 34206 Martin Hernandez, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact THE PARTIES CMI is a Florida corporation authorized to do business in Florida. CMI owns a mine site as is depicted in the permit application, which mine site is known as "Pine Level". Alan R. Behrens owns residential property approximately two miles from Pine Level, which abuts Horse Creek. He maintains an individual well for domestic and other purposes, and is a substantially affected person under the statute. Charlotte County is a government entity and a political subdivision of the State of Florida, and is a substantially affected person under the statute. The City of North Port is an incorporated municipality of the State of Florida, and is a substantially affected person under the statute. The Environmental Confederation (ECOSWF), a citizens group, is a substantially affected person under the statute. The District is the agency with the responsibility for reviewing and ruling upon CMI's water use permit application. APPLICATION AND PROCESS CMI proposes to operate a phosphate mine facility at "Pine Level" ("site"). The site is located approximately seven miles west of Arcadia, DeSoto County, Florida. The mine reserves at the site are approximately 17,700 acres. 9,000 to 10,000 acres are projected for mining. In 1978, Consumptive Use Permit No. 200103, was issued and in 1986, the current owners purchased the corporation which held the permit, and changed the name of the corporation to CMI. The Industrial Water Use Permit has not been used since it was issued to a prior owner of the site, and provided for average daily withdrawals of 13.6 mgd from wells. In 1984, this permit was renewed and modified to provide for average daily withdrawals of 12.8 mgd from deep wells. The groundwater withdrawals currently sought by CMI is 6.9 million gallons per day ("mgd") average daily withdrawal, which totals include 5.1 mgd from deep wells for use in the amine flotation process and 1.7 mgd for sealing the matrix slurry pumps. This reduction to 6.9 mgd in permitted withdrawals is a significant reduction. In addition, the proposed permit allows 3.7 mgd to be withdrawn from the surficial aquifer by dewatering mine cuts. In November, 1990, CMI submitted an application for renewal. In November 1991, CMI submitted to the District a revised Water Use Application No. 200103.02 ("application") to renew and modify the existing water use permit. The District requested more information, and CMI provided additional information and supplemental responses to aid in the review and evaluation of the application. The District prepared and submitted a Notice of Intent to Issue Permit and the District staff has prepared a "draft" Permit No. 200103.02 authorizing the withdrawal of the quantities requested in the application with certain conditions. In addition to renewal and modification of the water use permit, which is the subject of this proceeding, CMI will be required to participate in numerous regulatory reviews and permitting procedures (i.e. a development of regional impact evaluation, a federal environmental impact statement, federal approvals under the Clean Water Act [including a national pollutant discharge elimination system ("NPDES") permit], and a conceptual reclamation plan review) before CMI may commence mining, and consequently, begin any withdrawal of water. The mining process will utilize large walking draglines to excavate over burden and stack it beside the active mining area for land reclamation. The ore material called "matrix" will be dug up by the draglines, placed into an earthen pit where it will be slurried with a high pressure water jet. A pump will pick up this slurried matrix material, pump it back to the processing plant where it will first go through various separation devices, including screens and cyclones. The course material termed "pebble" will be separated and parts of that will be directly saleable as a product. The bulk of the phosphate product is contained in intermediate-sized material called concentrate feed. The concentrate feed consists of ore and sand. The ore is separated from the sand in a process called "flotation". The flotation process is a two stage process that ends up separating the tailings sand, which can then go back to the sand-clay flocculation and mixing units, and be pumped out ultimately for land reclamation back in the mine-out areas. The phosphate product which is called "wet rock", is placed in storage bins where it can drain, and be loaded onto rail cars for shipment. The "amine flotation process" is the second stage of flotation where sand and phosphates are separated. This process requires clean water for the amine flotation phase, because any amount of contaminants, including organic reagents, will adversely affect the process. Any mineral particles must be removed so that the amine may attach itself to the phosphate. Any contaminants will destroy or significantly and adversely affect not only the phosphate recovery, but the entire flotation process. Deep well water is requested for use in the amine flotation process because it is clean. All phosphate mines in Florida currently rely on deep well water. 5.2 mgd is the minimum amount of "clean" water needed to assure efficient processing of the amine flotation process of the mine beneficiation plant. Deep well withdrawals are also commonly used for the purpose of sealing or protecting the packing of pumps at various points in the mine system in order to avoid damage to the equipment. These wells are often referred to as "sealing water wells". The Pine Level mine will require 1.7 mgd for this purpose. Water for the sealing water wells must be clean and clear in order to effectively seal pumps for leaks. The Pine Level project will provide 400-500 construction jobs during the construction period. It will provide approximately 200 full-time jobs with an annual payroll of about five million dollars once it is in operation. It will result in about one thousand additional jobs providing services to the development. It will pay in excess of one million dollars a year to DeSoto County in ad valorem taxes. TECHNICAL CRITERIA The water use is a reasonable and beneficial use. 5.2 mgd groundwater withdrawal is "necessary to fill a certain reasonable demand." The technical criteria relating to water level or rates of flow impacts set forth in Rule 40D-2.301(1)(d), Florida Administrative Code, are not applicable in this proceeding because the District has not established any regulatory levels or rates of flow for the area encompassed by the application. In addition, this presumption only addresses surface water withdrawals. Phosphate mining is a beneficial activity and is consistent with the public interest. There is no significant risk of salt water intrusion. The water use withdrawal will not degrade the water quality in the aquifer by causing any contamination plume to spread. There have been no contaminant plumes identified on site. GROUNDWATER IMPACTS There is sufficient ground water at the site of a suitable quality and quantity to support the proposed phosphate mining and beneficiation activities. The local hydrogeology at the site consists of an upper layer known as the surficial aquifer. Rain penetrates the surficial aquifer to flow vertically to the water table. The water that is not consumed by vegetation at this layer will flow either to a nearby stream channel or will leak down through a semi- confining layer. The water continues to seep vertically into the lower underlying limestone aquifers. There are three limestone water-bearing layers: the intermediate, the Suwannee or Upper Floridan, and the Avon Park or Lower Floridan aquifers, respectively. The intermediate and the underlying Suwannee aquifer are separated by another semi-confining layer. Likewise, the Avon Park aquifer and the Suwannee aquifer are separated by another semi-confining layer. At the site, wells in the intermediate aquifer will draw water to seal the bearings on the matrix slurry pumps. There will be one deep well in the Suwannee and one deep well in the Avon Park to draw for the beneficiation plant. The groundwater modeling performed by CMI simulated the four aquifers, that is, the surficial aquifer and each of the three limestone aquifers. An Aquifer Performance Test ("APT") was performed at the site. The data generated from the APT was used to calculate various aquifer parameters, for example, transmissivity, storage coefficient, and leakiness. This information was then used in setting up the groundwater flow model that ultimately was incorporated into the application. During the District staff's review of the application, the deep well withdrawal quantities requested by CMI were compared with approximately 6 other phosphate mines of comparable size, acreage, and type of operation. As a result of this comparison, the staff found CMI's requested use to be less than the other six phosphate mines. The use of recycled water in the amine flotation process in place of deep well water in the past by CMI has proven unsuccessful because a constant temperature and a constant ph level could not be maintained with recycled water, and recycled water contains traces of fatty acids and oils, which also negatively affect the amine flotation process. C.F. Industries, Inc., has been operating a phosphate mine in Hardee County, Florida, since 1978. C.F. Industries, Inc., has since 1983 at the Hardee County mine, successfully substituted recirculation water for deep well water for operation of the amine flotation circuit on a routine basis. C.F. Industries, Inc., presently plans to employ substitution of some recirculation water for deep well water in a new yet-to-be permitted mine. C.F. Industries, Inc., at its existing Hardee County mine requires use of deep well water for start-up purposes to "charge" the system. C.F. Industries, Inc., at its existing mine, uses deep well water to respond to abnormal operational conditions, including excessive rainfall events, when the quality of the normal recirculation water is not suitable for substitution of deep well water. Neither CMI, nor District staff was aware prior to hearing, that the C.F. mine was successfully substituting recycled water for deep well water in the amine flotation process. At the time of making the representations to the District about necessary water quality requirements of the flotation process, CMI had a study, entitled, Amine Water Evaluation, Pine Level Project, July 27, 1984, ("Pilot Plant Study"), which concluded that deep well pumping and discharge could be reduced by use of water drawn from mine cuts. The Pilot Plant study was site specific to CMI's proposed phosphate mine. The Pilot Plant study bench tests were verified in the same pilot plant facility CMI uses to verify the grade of ore on the Pine Level Site. The Pilot Plant study or its results were known to CMI officials or experts involved in the permit application at issue in this case. CMI did not inform District staff of the existence or conclusions of the Pilot Plant study. The Pilot Plant study indicates that CMI could reduce its water usage by substituting water from mine cuts for deep well water. CMI did no studies to determine if the substitution of mine cut water for deep well water, as suggested by the Pilot Plant Study, was feasible to implement. SURFACE WATER IMPACTS The phosphate ore (matrix), is extracted by an excavation machine called a "dragline", which opens mining cuts of approximately 32 to 35 feet in depth, 330 feet wide, and up to 4,000 feet long. Seepage occurs into the mine cuts from the water table, and must be pumped out in order to see and extract the matrix. This dewatering is also necessary to protect the draglines against slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculation system which is operated for purposes of collecting and recycling water within the mine complex. The matrix that is extracted from the mining cut is placed in a shallow excavation near the cut, and is converted to a slurry and, thereafter, transported hydraulically to the mine processing (or "beneficiation") plant. The beneficiation plant uses considerable quantities of water, utilizing supplies from within the mine system (i.e. surface water) and water from deep wells. Sand tailings and sand and clay mixture are by-products of the mining process. Recycled water is used to transport waste clay and sand from the plant to the disposal and reclamation areas. Reclamation takes 1-2 years for areas reclaimed with sand tailings and 5-6 years for areas reclaimed with a sand-clay mixture. Groundwater that is used in the processing plant is recycled. Water within the mine is recycled a number of times, and CMI's proposal calls for 90 percent of the total mine demand to be satisfied by this recirculation system and approximately 96 percent of the water used is recyclable water. DEWATERING AND WATER BALANCE CMI's mine pit dewatering activities result in the withdrawal of water from the surficial aquifer. A "water balance" demonstrates that requested quantities relate to reasonable mining, processing, and dewatering needs. The "water balance" for the mining operation evidences a balance between sources and uses/losses. The sources of water in the CMI water balance that input to the mining operation include groundwater from wells (6.9 mgd), mine cut dewatering or water table drainage (3.7 mgd), and collected rainfall (3.1 mgd). Uses and losses associated with the mining operation include water retained in clays (6.7 mgd), water shipped with final product (.7 mgd), evapotranspiration and evaporation (3.0 mgd), water used for agricultural irrigation (5.0 mgd), and water seeping from the Mine Water Surge Area ("MWSA") (1.2 mgd). The water balance matrix moisture component of 2.9 mgd is not a withdrawal of water for water use permitting purposes. The District's modeling of the impacts resulting from mine cut dewatering resulted in a finding of 2.34 MGD as opposed to the 3.7 mgd derived by CMI. For calculation purposes, rainfall is collected at the rate of 3,974 gallons per acre per day. CMI calculates that it will collect 3.1 mgd of rainfall, and use it in its recirculation system. The 3.1 mgd calculation is based on the amount of rain that will fall on 600 acres of mine water surge area, 80 acres of plant site, and two 50 acre mine cuts. CMI plans to mine 450 acres each year at the Pine Level Site over a period of 22 years. Runoff over disturbed areas on the CMI mine site must be captured, and will become part of the recirculation system. Assuming only one year of disturbed area during the permit term, CMI has failed to account for nearly 1.8 mgd in its water balance (450 acres x 3,974 gallons/acre/day). CMI plans to pump any rainfall collected from all disturbed areas to the mine water surge area (MWSA). CMI has not included any acres of disturbed area in its calculations of the amount of rainfall it will collect for the current permit. CMI has not submitted a mine plan. Without a mine plan, the number of disturbed acres cannot be determined. Because CMI's water balance does not include rainfall collected over disturbed areas, the water balance is incorrect. The rainfall collected from the disturbed areas will increase the amount of water that CMI will need to discharge or use for agricultural purposes. Excavation of the Mine Water Surge Area will cause dewatering of the surficial aquifer. No analysis was done of how much dewatering of the surficial aquifer will occur as a result of the excavation of the MWSA, or of the potential impacts to wetlands as a result of the dewatering activities. The District's one foot draw down presumption applies to dewatering as well as to groundwater pumping. The proposed dewatering setback from wetlands was set at 660 feet. The 660 foot setback distance is in lieu of mitigation if CMI wishes to mine within the setback distance, it will be required to implement mitigation procedures. Dewatering draw downs in the surficial aquifer as great as six and one-half to seven feet could occur on the CMI site at 660 feet from a mine cut under dry weather conditions. At 660 feet, the predicted draw down is nearly one and one-half feet using a mine pit depth of 26 feet, based on a three foot water table and a 29 foot average mine cut depth for the area expected to be mined during the term of the permit. Actual mine cut depths during the term of the permit would be as deep as thirty-seven feet which result in a draw down in the aquifer that is greater than one and on-half feet. Combining the dewatering calculations with the surficial aquifer draw downs resulting from CMI's planned well pumping from the intermediate and Floridian aquifers result in greater than predicted draw downs. CMI's water balance did not account for changes in water needs due to variability of the ore body. WATER QUALITY CMI has not demonstrated that the water quantities requested for the operation of the phosphate mine and beneficiation plant, and land reclamation and water handling will utilize the lowest water quality to the greatest extent practicable. Nevertheless, the Pine Level mine is innovative in comparison to other operating mines. It proposes to reduce its groundwater requirement by increasing the amount of recycled water used in the amine flotation process; employ an innovative sand/clay mixing technique for land reclamation, thus eliminating the need for conventional large, above-ground day settling areas or slime ponds; and use surplus water for irrigation of agricultural crops or pasture. CMI plans to mine the Pine Level Site for a period of 22 years. For phosphate mines, neither DNR, nor SWFWMD analyze impacts with respect to surface water during the mining process. For phosphate mines, no state agency looks at off-site surface water impacts from the standpoint of draw downs, with the possible exception of cities and counties. The District has not required CMI to submit an application for the management and storage of surface waters permit, since the District staff believes that phosphate mines are exempt from obtaining any MSSW permit from the District. A gap exists in the regulatory scheme for phosphate mines with respect to the reduction of surface water flows during the mining process if SWFWMD exempts phosphate mines from obtaining an MSSW permit. INTERFERENCE WITH EXISTING LEGAL USERS The City of North Port is an existing legal user of water. The City of North Port has a public water supply facility which draws its water from the Big Slough. The Big Slough normally gets a portion of its flow from high quality water in the surficial aquifer. CMI's proposed Pine Level phosphate mine is located in the watersheds which feed the Big Slough and the Peace River. In the initial years of the mine, virtually all of the collected rainfall will be diverted from the Big Slough watershed. No analysis has been done to see how dewatering might affect the City of North Port. Any significant reduction in flow to the City of North Port's facility during the low flow season will interfere with North Ports existing legal use of water. Diversion of 3.1 mgd of rainfall from the Big Slough will have an adverse impact on the City of North Port's water facility. The City of North Port is currently under a consent agreement with the Florida Department of Environmental Regulation because the water supplied by its facility violates drinking water quality standards for sulfates and total dissolved solids ("TDS") regularly during periods of low flow in the Big Slough. The MWSA, the plant area and the initial mining areas are primarily within the Big Slough drainage area. Seepage of 1.2 mgd from the MWSA will flow into the Big Slough. The only analysis done of the quality of the seepage from the MWSA was a rough analysis which showed that sulfates will likely be around 550 grams per liter. The legal standard for sulfates in drinking water is 250 grams per liter. Seepage from the MWSA will be high in total dissolved solids ("TDS") since a good portion of it was pumped from deep wells which have very high levels of TDS. No analysis was done of the potential of this seepage water to interfere with North Port's facility. Charlotte County is an existing legal user of water whose water supply is drawn from the Peace River downstream from the proposed CMI phosphate mine at Pine Level. Discharge of 5.0 mgd from the Pine Level mine could adversely affect Charlotte County's drinking water facility located on the Peace River. AGRICULTURAL USE CMI proposes to use 5.0 MGD of surplus water for irrigation of pasture grasses for cattle. CMI has not conducted any specific tests to determine the feasibility of using the discharge or the quality of the water that they plan to use for agricultural irrigation. The water for irrigation will be drawn out of the mine water surge area. The determination of whether the 5.0 mgd discharge can be used for agricultural irrigation has been postponed. The staff's position is that the proposed special conditions provide reasonable assurances that the discharge will comply with the requirements of the Basis for Review. WETLANDS Isolated wetlands occur throughout the CMI mine site. The isolated wetlands on the CMI property provide habitat for endangered and threatened species. Sandhill Cranes and Wood Storks, both threatened or endangered species, were sighted on the CMI property by wetlands experts during their site visit prior to the hearing. Small isolated wetlands on CMI property would be adversely affected by less than a one foot draw down. Wetland peat soils oxidize if exposed to the air. Oxidation results in subsidence of the wetland soils, which adversely impacts wetlands. Too much water as well as too little water can adversely impact wetlands. The combined effects of aquifer pumping and dewatering planned at the CMI site will adversely affect wetlands. No analysis was completed of the impacts to wetlands as a result of the combined effects of dewatering and pumping from the aquifer. No information regarding the normal range of wetland hydroperiods for preserved wetlands or other onsite unmined wetlands was introduced. No information was provided regarding the habitat functions provided by the wetlands on the CMI site either for threatened or endangered species or otherwise. ENVIRONMENTAL IMPACT The Applicant did not provide reasonable assurance that the water use will not cause unacceptable adverse impacts to environmental features on or off- site. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact to surface water bodies such as lakes, ponds, impoundments, springs, streams, canals, estuaries or other water courses. The Applicant did not provide reasonable assurances that there will be no adverse environmental impact to wetlands, lakes, streams, estuaries, fish, and wildlife or other natural resources. The Applicant did not provide reasonable assurances that there will be no adverse impacts to the surface water system or vegetation as a result of groundwater withdrawal. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact by altering or impairing the habitat of threatened or endangered species. The Applicant did not provide reasonable assurances that the projected draw downs will not result in any adverse impact to any protected or non-protected plant or animal species. The Applicant did not provide reasonable assurances that the water use will not have an adverse environmental impact to wetlands.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of Southwest Florida Water Management District enter a Final Order DENYING the issuance of a Water Use Permit to the Applicant, CMI. DONE and ENTERED this 20th day of April, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 20th day of April, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs - 13, 14, 15, 21, 24, 31, 35, 38, 70, 71, 73, 75, 91, 97, 100, 104, 105, 114, 115, 116, 125, 126, 127, 128, and 129. Rejected as subsumed or irrelevant and immaterial: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 20, 22, 23, 25, 27, 28, 29, 30, 33, 34, 36, 37, 37A, 39 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 72, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,87, 92, 93, 94, 95, 96, 98, 99, 101, 102, 103, 106A, 106, 107, 108, 109, 110, 111, 112, 113, 117, 120, 121, 122, 123, 124, 130, 131, 132, 133, and 134. Rejected as against the greater weight of the evidence: paragraphs - 18, 26, 32, 41, 42, 46 (omitted), 47 (omitted), 69, 88 (omitted), 89 (omitted), 90 (omitted), 118 (omitted), 119 (omitted), and 135 (omitted). Proposed findings of fact submitted by Petitioner, Charlotte County. Accepted in substance: paragraphs - 1, 2, 7, 18, 19, 20, 22, 25, 28, 29, 36, 40, 41, 51, 59, and 62. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 23, 24, 26, 27, 30, 31, 32, 33, 34, 35, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 60, and 61. Rejected as hearsay: paragraphs - 43 and 44. Proposed findings of fact submitted by Petitioner, City of North Port. Accepted in substance: paragraphs - 1, 2, 3, 5, 6, 7, 9, 19, 20, 21, 22, 24(in part), 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 47, 48, 49(in part), 50, 51, 52, 53, 54, 56, 57(in part), 58, 59, 60, 61, 63(in part), 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 83, 84, 85, 86(in part), 87, 92, 93, 95, 96, 99, 104, 107, 108(in part), 109(in part), 112, 113, 114, 115, 116, 120, 122, 123, 126, 138, 139, 140, 141, 142, 143(in part), 144, 150, 153, 154, 155, 156, 159, 167, 168, 170, 171, 172, 173, 176, 177, 179, 180, 187, 193, 194, 195, 197, 198, 199, 200, 201, 202, 204, 205. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 4(contained in Preliminary Statement), 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24(in part), 33, 43, 44, 46, 49(in part), 55, 57(in part), 62, 63(in part), 64, 76, 77, 81, 82, 86(in part), 88, 89, 90, 91, 94, 97, 98, 100, 101, 102, 103, 105, 106, 108(in part), 109 (in part), 110, 111, 117, 118, 119, 121, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 143(in part), 145, 146, 147, 148, 149, 151, 152, 157, 158, 160, 161, 162, 163, 164, 165, 166, 169, 174, 175, 178, 181, 182, 183, 184, 185, 186, 188, 189, 190, 191, 192, 196, 203, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217. Proposed findings of fact submitted by Respondent/Petitioner Consolidated Minerals, Inc. and Southwest Florida Water Management District. Accepted in Substance: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, 20, 21, 22(in part), 23, 24, 25(in part), 26, 27(in part), 28, 29(in part), 32, 33(in part), 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52(in part), 53, 54, 55, 56, 57(in part), 58, 62, 71, 82, 85, 87, 88, 91, 92(in part), 93, 94(in part), 95(in part), 96(in part), 97(in part), 100(in part), 101, 115, 119, 120, 123, 124(in part), 125(in part), 126(in part), 127(in part), 130(in part), 133(in part), 137, 138(in part), 139, 145. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 12, 13, 15, 16, 31, 36, 37, 38, 48, 51, 52(in part), 57(in part), 59, 60, 63, 80, 81, 83, 84, 86, 90, 94(in part), 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 118, 124(in part), 126(in part), 127(in part), 130(in part), 134, 135, 136, 138(in part), 140, 141, 142, 143. Rejected as against the greater weight of evidence: paragrahs - 22(in part), 25(in part), 27(in part), 29(in part), 30, 33(in part), 34, 35, 61, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 89, 92(in part), 95(in part), 96(in part), 97(in part), 98, 99, 100(in part), 102, 103, 121, 122, 125(in part), 128, 129, 131, 132, 133(in part), 144. Proposed findings of fact submitted by Petitoner, Environmental Confederation of Southwest Florida, Inc. Accepted in substance: paragraphs - 1, 2, 3, 4 6, 7, 17, 22, 26, 27, 28, 29, 30, 33(in part), 34, 35, 39(in part) 41, 42, 43, 45, 48, 53, 56, 57, 59, 60, 61, 62, 71, 73, 80, 81, 82, 85, 86, 87, 92(in part), 106, 107, 110, 112, 113, 114, 115, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139(in part), 140, 141, 142, 143, 144, 145, 148, 149, 150, 151, 152, 154, 155, 157, 158, 162, 163, 164, 165. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 31, 32 33(in part), 36, 37, 38, 39(in part), 46, 47, 49, 50, 51, 52, 55, 58, 63, 64, 65, 66, 67, 68, 70, 72, 74, 75, 76, 77, 78, 79, 83, 84, 88, 89, 90, 91, 92(in part), 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 109, 111, 118, 119, 120, 146, 147, 153, 156, 159, 160, 161, 166, 167, 168. Rejected as against the greater weight of evidence: paragraphs - 44, 54, 69, 139(in part). COPIES FURNISHED: Rory C. Ryan, Esquire Roger W. Sims, Esquire HOLLAND & KNIGHT Suite 2600 200 S. Orange Avenue P. O. Box 1526 Orlando, Florida 32802 Vivian Arenas, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad St. Brooksville, Florida 34609 Mr. Alan R. Behrens Route 2, Box 725-A-32 Arcadia, Florida 33821 Matthew G. Minter, Esquire County Attorney 18500 Murdock Cr. Port Charlotte, Florida 33948-1094 David M. Levin, Esquire ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG PO Box 4195 Sarasota, Florida 34237 Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund PO Box 1329 Tallahassee, Florida 32302 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, Florida 34609-6899
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 The issue in this case is whether Water Use Permit (WUP) Application Number 20009478.005 meets the conditions for issuance as established in Section 373.223, Florida Statutes (2001), Florida Administrative Code Rule 40D-2.301 (April 2001), and the District’s Basis of Review for Water Use Permit Applications.
Findings Of Fact The Parties Petitioner, Alan Behrens, owns real property and a house trailer located at 4070 Southwest Armadillo Trail, in Arcadia, Florida. Behrens uses a two-inch well as the primary source of running water for his trailer. Boran and his family operate a ranch and sod farm in Arcadia, Florida, under the limited partnership of Boran Ranch and Sod, Ltd. Boran uses several different on-site wells to irrigate the farm. See Findings 12-17, infra. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. Permit History Boran’s property is a little over 1,000 acres in size, on which he has raised cattle and grown sod for approximately the past four years. Before Boran owned the property, its prior occupants used the land for growing fall and spring row crops (primarily tomatoes). Boran's cattle and sod farm uses less water than was used by previous owners and occupants. In 1989, the original permit holders could make annual average daily withdrawals of 309,000 gallons but also were allowed a maximum daily withdrawal of 6,480,000 gallons. In 1992, the permitted withdrawals increased to an annual average daily quantity of 2,210,000 gallons, with a peak monthly limit of 3,596,000 gallons per day. On December 14, 1999, Boran received an agricultural water use permit (WUP No. 20009478.004) from the District. This current existing permit expires on December 14, 2009. The current permit grants Boran the right to withdraw groundwater for his agricultural use in the annual average daily quantity of 1,313,000 gallons, and with a peak month daily quantity of 3,177,000 gallons. On September 11, 2000, Boran filed an application to modify his existing water use permit. Modification of Boran's existing permit does not lengthen the term of the permit, and the scope of the District's review was limited to those features or changes that are proposed by the modification. The proposed modification would allow Boran to increase his annual average daily quantity by 175,000 gallons, and increase the peak month daily quantity by 423,900 gallons, for the irrigation of an additional 129 acres of sod. With the proposed increase, the new annual average daily quantity will be 1,488,000 gallons, and the new peak month daily quantity will be 3,600,900 gallons. The proposed modification also provides for the construction of an additional well (DID #6) on the southeastern portion of property, which will withdraw groundwater from the upper Floridan aquifer. The proposed agency action also entails a revision of the irrigation efficiency rating for the entirety of Boran Ranch. Irrigation efficiency refers to the ability to direct water to its intended target, which in this case means the root zone of the sod, without losing water to evaporation and downward seepage. Under the proposed permit modification, Boran will increase the entire farm’s water efficiency from 65 percent to 75 percent. As discussed further in the Conditions for Issuance section infra, the District's AGMOD modeling program uses this efficiency rating as part of its determination of the appropriate quantities for withdrawals. The higher the efficiency rating, the less water received under a permit. Because the efficiency rating increased, the application rate for water decreased from 42" per year to 36.4" per year for the entire Boran Ranch. Boran's Wells There are six well sites (labeled according to District identification numbers, e.g., DID #3) existing or proposed on Boran’s property. DID #1 is an eight-inch well located in the northeastern portion of the property. DID #1 provides water solely from the intermediate aquifer. DID #2 is an eight-inch well located in the middle of the property. DID #2 withdraws water from both the intermediate and upper Floridan aquifers. Both DID #1 and DID #2 were installed in 1968, and predate both the first water use permit application for the farm and the District's water use regulatory system. DID #4 is a twelve-inch well located in the north- central part of the property and solely taps from the upper Floridan aquifer. DID #4 had already been permitted and constructed as of the date of the proposed modification application at issue in this case. DID #3 and DID #5 are twelve-inch wells which have already been permitted for the southern and northern portions of the property, respectively, but have not yet been constructed. Both wells will withdraw water only from the upper Floridan aquifer. DID #6 is a proposed twelve-inch well to be located on the southeastern portion of the property and to irrigate an additional area of sod. DID #3, #5, and #6 will all be cased to a depth of approximately 540 feet, and only open to the upper Floridan aquifer to a depth of approximately 940 feet. By casing the well with pipe surrounded by cement, these wells will be sealed off to all aquifers above 540 feet, including the intermediate aquifer. All the wells on the property are used to irrigate sod. The wells have artesian flow, but utilize diesel pumps to provide consistent flow pressure year-round throughout the fields (some of which can be a mile and a half from a well). Since running the pumps costs money, there is an economic incentive not to over-irrigate. In addition, over-irrigation can lead to infestations of fungi and insects, and eventually cause the grass to rot and die. As a result, the fields receive irrigation only when dry areas in the fields appear and the grass begins to wilt. Boran Ranch Operations and Management Practices Boran Ranch primarily grows three kinds of grasses: St. Augustine Floratam; St. Augustine Palmetto; and Bahia. (Boran also is experimenting on a smaller scale with common paspalum and common Bermuda.) The Bahia grass, which is what also grows in the ranch's cattle pasture, does not require irrigation; the St. Augustine grasses are less drought- resistant and require irrigation at times. The majority of the sod sold to residential installers (who ordinarily work for landscape companies) is a St. Augustine grass. Commercial or governmental roadside installations favor Bahia. Currently, Boran sells more Bahia than St. Augustine. But market demand determines which types of grass are produced on the farm. As residential use and demand for St. Augustine in southwest Florida increases, so would the proportion of the farm used for growing St. Augustine grass. Boran grows sod year-round because of a large demand for the product in Ft. Myers and Cape Coral, and to a lesser extent in Punta Gorda and Port Charlotte. Sod helps control erosion and is considered to have aesthetic value. There also was some evidence that sod lowers the ambient temperatures, as compared to bare dirt; but the evidence was not clear how sod would compare to other ground cover in lowering temperatures. When subsurface seepage irrigation is being used, a sod field must be disked and "laser-leveled" to the proper elevation, with a slight slope created in the field to help ensure proper irrigation and drainage, before it can be used for sod production. The fields are laser-leveled before the irrigation system is installed and the crop is planted. The perforated irrigation supply lines of Boran Ranch’s subsurface irrigation system, also known as the "tile," run the opposite direction of the slope of the field and perpendicular to the main irrigation line. Once the subsurface irrigation system is installed, the field receives sprigs of sod, which are then watered and "rolled" to pack them into the ground. Approximately three months after a field has been rolled, the new sod is then periodically fertilized, sprayed and mowed. Sod takes approximately one year to grow before it may be harvested. The sod at Boran Ranch is harvested via tractor with a "cutter" on its side, which cuts underneath the grass, lifts it up onto a conveyor belt, and then onto a pallet for shipping. There are four different types of irrigation systems used for growing sod in Florida: (1) pivot systems which rely on sprinklers attached to overhead lines that rotate around a fixed point; (2) overhead rain guns which utilize motorized hydraulic pressure to spray a field; (3) above-ground seepage; and (4) subsurface irrigation systems (which can also be used to drain excess water from fields during large rain events). The most efficient irrigation system used for sod in Florida is the subsurface irrigation system. Boran Ranch first started the subsurface irrigation system approximately four years ago. Since that time, Boran Ranch has converted almost all its fields to the subsurface irrigation system, at a cost of approximately $1150 to $1350 per acre. As a result of this conversion process, Boran Ranch now uses less water per acre of sod. The subsurface irrigation system delivers water from a well to a water control structure (also known as the "box") via the imperforated main irrigation line. The perforated lines of the "tile" are connected to this main irrigation line at a 90-degree angle. The largest portion of the "box" sits underground. Once the water in the main irrigation line reaches the "box," water builds up behind removable boards contained in the box, creating the backpressure which forces water out into the tile. Water flows out from the tile to maintain the water table level at or near the root zone of the sod. Subsurface irrigation systems only function on property that has a hardpan layer beneath the soil. The hardpan layer acts as a confining unit to minimize the downward seepage of water, thereby allowing the subsurface irrigation system to work efficiently. Behrens questioned whether Boran Ranch has the necessary hardpan based on Todd Boran's reliance on hydrogeologists for this information. But the expert testimony of Boran's hydrogeology consultant and the District's hydrogeologist confirmed Todd Boran's understanding. Typically, the highest board in the box has the same height as the top of the field. Once the water level inside the box surpasses the height of the last board, water will spill over that board into the remainder of the box and then out another main irrigation line to the next box and set of tiles. By removing some of the boards in the box, Boran can bypass irrigating certain sections of his fields in favor of other areas. Excess water from the fields flows into field ditches which lead to wetlands on the property. If water leaves the wetlands during episodes of heavy rains, it flows downstream to the Peace River. Conditions for Issuance Boran Ranch is located in southwestern DeSoto County, in an area designated by the District as the Southern Water Use Caution Area (SWUCA). The District created the SWUCA, which covers 5,000 square miles, after first determining that the groundwater resources of eastern Tampa Bay and Highlands Ridge regions were stressed and creating the Eastern Tampa Bay Water Use Caution Area (ETBWUCA) and Highlands Ridge Water Caution Area (HRWUCA). Both the ETBWUCA and the HRWUCA are contained within the larger boundaries of the SWUCA. Within the ETBWUCA is an area along the coasts of portions of Hillsborough, Manatee, and Sarasota counties known as the Most Impacted Area (MIA). Special permitting rules exist for new projects located within the ETBWUCA, HRWUCA, and MIA, but not within the remainder of the "undifferentiated" SWUCA. Boran Ranch is located in this "undifferentiated" area of the SWUCA. Behrens took the position that Boran should not be permitted any additional water use until special permitting rules are promulgated for the "undifferentiated" SWUCA. But Behrens could cite no authority for such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. The evidence proved that the quantities authorized by the proposed modification are necessary to fulfill a certain reasonable demand, as required by Rule 40D- 2.301(1)(a). Boran sought additional water quantities through the permit modification application in order to irrigate an additional 129 acres of its sod farm. The application reflects a need for additional water, associated with additional acreage added to the farm. Boran used the District's AGMOD spreadsheet model, which is based on a mathematical methodology known as the modified Blainey-Criddle method, to determine the reasonable quantities for Boran's specific agricultural use. AGMOD inputs into its computations the following variables: (1) geographic location of the proposed use; (2) type of crop grown; (3) irrigation (efficiency); (4) pump capacity; (5) soil type; and (6) number of acres to be irrigated. AGMOD is a generally accepted tool used for determining the allocation of water quantities for agricultural use. In the instant case, the AGMOD calculations incorporated 87 years of rainfall data and its results reflect the quantities necessary in the event of a two-in-ten-year drought. Similarly, the AGMOD calculations in the instant case take into account the change in irrigation efficiency from 65 percent to 75 percent. Behrens suggested that Boran should not be allowed to use any more water until minimum flows and levels are established for the intermediate aquifer in the vicinity. However, Behrens could cite no authority for imposing such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. See Finding 49 and Conclusion 86, infra. Behrens also suggested that inputs to AGMOD should assume more Bahia and less St. Augustine grass so as to reduce the resulting amount of reasonable demand. He also suggested that Boran's reasonable demand should not take into account possible future increases in St. Augustine grass production based on possible future market demand increases. But it does not appear that the District requires an applicant to differentiate among various types of grasses when inputting the crop type variable into the AGMOD model for purposes of determining reasonable demand. See Water Use Permit Information Manual, Part C, Design Aids (District Exhibit 2C), Table D-1, p. C4-9. The evidence proved that Boran demonstrated that the proposed use will not cause quantity or quality changes that adversely impact the water resources, on either an individual or cumulative basis, including both surface and ground waters, as required by Rule 40D-2.301(1)(b). Data from water quality monitoring reports indicate that water quality at Boran Ranch and in the region has remained fairly consistent. There were no statistically significant declining trend in water levels in the region. Behrens admitted that water quality in his well has been consistently good. One apparent increase in total dissolved solids and chlorides in DID #1 was explained as being a reporting error. Boran inadvertently reported some findings from DID #2 as coming from DID #1. Until the error was corrected, this made it appear that water quality from DID #1 had decreased because, while DID #1 is open only to the intermediate aquifer, DID #2 is open to both the intermediate aquifer and the upper Florida aquifer, which has poorer water quality. Both Boran and the District used the MODFLOW model, a generally accepted tool in the field of hydrogeology, to analyze withdrawal impacts. The purpose of modeling is to evaluate impacts of a proposed use on the aquifer tapped for withdrawals, and any overlying aquifers including surficial aquifers connected to lakes and wetlands. MODFLOW uses mathematics to simulate the different aquifer parameters for each production unit determined from aquifer performance testing. During the permit application process, both Boran and the District conducted groundwater modeling by simply adding the proposed new quantities to models developed for Boran's permit application in 1999. The models were comparable but not identical; the District's model was somewhat more detailed in that it separated predicted drawdowns into more aquifer producing units. Both models satisfied the District that the proposed modification would have no adverse impact on water resources. After the challenge to the Proposed Agency Action, the District created a new model to assess the impact of only the additional quantities requested by the modification. This new model added some aquifer parameters obtained from Regional Observation Monitoring Program (ROMP) well 9.5, which was constructed very close to the Boran Ranch in 1999. (Information from ROMP 9.5 was not available at the time of the earlier models.) The new model allowed the District to limit the scope of its review to those changes proposed by the modification. The results of this model show that impacts are localized and that most are within the confines of Boran’s property. The greatest impacts resulting from the proposed modification would occur in the Suwannee Limestone producing unit (the upper-most portion of the upper Floridan aquifer), the unit to be tapped by DID #6. The confining unit above the upper Floridan aquifer in this region of DeSoto County is approximately 300-400 feet thick, and impacts on the intermediate aquifer, which is above this confining unit, are much less. When the District's new model was run for peak monthly withdrawals (423,900 gpd for 90 days), the model's 1.0 foot drawdown contour was contained within the confines of Boran’s property, and the 0.1 foot drawdown contour extended only approximately two miles out from the well node of DID #6. Atmospheric barometric changes can cause fluctuations in aquifer levels that exceed a tenth of a foot. As minimal as these modeled impacts appear to be, they are larger than would be expected in reality. This is because, for several reasons, MODFLOW is a conservative model- -i.e., impacts modeled are greater than impacts that would be likely in actuality. First, MODFLOW is a mathematical, asyntopic model. This means it models very gradually decreasing drawdowns continuing over long distances as predicted drawdowns approach zero. This tends to over-predict impacts at greater distances from the withdrawal. In reality, the heterogeneity or discontinuity of confining units cuts down on drawdown effects. The steepest drawdowns occur at a well node and then decline relatively rapidly with distance. Second, several model inputs are conservative. The annual average quantities for water use generated under the AGMOD methodology is based on a two-in-ten-year drought year. The peak month quantity applies to the three driest months within the two-in-ten-year drought period. The MODFLOW model applies this 90-day peak usage continuous pumping under AGMOD and conservatively assumes no rainfall or recharge to the aquifers during this period. Both of these are extremely conservative assumptions for this region of Florida. The District's determination of reasonable assurances "on both an individual and a cumulative basis" in water use permit cases only considers the sum of the impact of the applicant's proposal, together with all other existing impacts (and perhaps also the impacts of contemporaneous applicants). The impacts of future applicants are not considered. This differs from the cumulative impact review under Part IV of Chapter 373 (environmental resource permitting). See Conclusions 80-84, infra. Modeling is a component of the District’s assessment of impacts on a cumulative basis. In addition, the District reviewed and assessed hydrographs of the potentiometric surface from nearby ROMP wells, water quality data, permit history of the Boran site, and regional hydrologic conditions. The hydrographs represent the accumulation of all impacts from pumpage in the area and show stable groundwater levels in the region. Water quality also is stable, with no declining trends. The permit history indicates that permitted withdrawals on the Boran site have declined. For all of these reasons, the evidence was that Boran's proposed withdrawals would create no adverse impacts on water resources on a cumulative basis. The evidence proved that the proposed agency action will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources, as required by Rule 40D-2.301(1)(c). Due to the significant confinement between the source aquifers and the surficial aquifer and surface water bodies, the modeling results show no adverse impact to the surficial aquifer, and no adverse impact to wetlands, streams, estuaries, fish and wildlife, or other natural resources. The evidence was that there are no minimum flows or levels set for the area in question. Furthermore, Standard Condition 9 of the Proposed Agency Action requires Boran to cease or reduce withdrawals as directed by the District if water levels should fall below any minimum level later established by the District. The more persuasive evidence was that the requirements of section 4.3 of the District's Basis of Review have been met. (A moratorium on water use permits until establishment of minimum flows and levels would be neither reasonable nor appropriate.) The evidence proved that the proposed use will utilize the lowest water quality he has the ability to use, as required by Rule 40D-2.301(1)(e), because the new withdrawals are exclusively from the upper Floridan aquifer, which has poorer quality than the intermediate aquifer. Deeper aquifers cannot be used because the water quality is poorer than the upper Floridan aquifer, and it is technically and economically infeasible to use it for agricultural purposes. Behrens suggests that Boran should be required to discontinue all withdrawals of higher quality water from the intermediate aquifer as part of the proposed modification. While an offer to do so might be welcomed (as was Boran's offer to install subsurface seepage irrigation and apply the higher efficiency percentage to the entire Boran Ranch), Behrens could cite no authority for imposing such a condition; and the more persuasive evidence was that imposition of such a condition would be neither reasonable nor appropriate under the circumstances of this case. The evidence proved that the proposed use will not significantly induce saline water intrusion, as required by Rule 40D-2.301(1)(f), because the model results show that the drawdown contours do not approach anywhere near the ETBWUCA or MIA areas. Boran's Ranch is located approximately 21 miles from the MIA boundary and 10.8 miles from ETBWUCA boundary. Further, Boran must monitor the water quality in DID #1 and DID #4 and document any changes in water quality as a result of the withdrawals. The parties have stipulated that the proposed use meets the requirements of Rule 40D-2.301(1)(g) and will not cause pollution of the aquifer. The evidence proved that the proposed use will not adversely impact offsite land uses existing at the time of the application, as required by Rule 40D-2.301(1)(h), because the modeling showed no impact to the surficial aquifer or land use outside Boran Ranch. The confinement between the point of withdrawal and the surface is too great to impact offsite land uses in the instant case. The evidence proved that the proposed use will not adversely impact any existing legal withdrawal, as required by Rule 40D-2.301(1)(i), based on the ROMP hydrographs and modeling showing minimal drawdowns outside the boundaries of Boran Ranch. Behrens claims that Boran's proposed modification will adversely impact his well, which is approximately 3.5 miles northeast of the northeast corner of the Boran property and over four miles away from DID #6. But the greater weight of the evidence was to the contrary. (The wells of other DCAP members were even further away, making impacts even less likely.) Behrens has no independent knowledge of the depth of his two-inch well but believes it is approximately 150 feet deep, which would place it within the intermediate aquifer. In view of the consistent quality of Behrens' well water, and the nature of his well construction, it is most likely that Behrens' well does not penetrate the confining layer between the intermediate aquifer and the upper Floridan aquifer. If 150 feet deep, Behrens' well would not extend into the deepest producing unit of the intermediate aquifer (PZ-3); rather, it would appear to extend into the next deepest producing unit of the intermediate aquifer (PZ-2). But it is possible that Behrens' well cross-connects the PZ-2 and the shallowest producing unit of the intermediate aquifer (PZ-1). (The evidence did not even rule out the possibility that Behrens' well also is open to the surficial aquifer.) Assuming that Behrens' well is open to the PZ-2 only, conservative MODFLOW modeling predicts no impact at all from the proposed modification. (Behrens' well would be outside the zero drawdown contour.) Meanwhile, hydrographs of PZ-2 from nearby ROMP wells show marked fluctuations (five-foot oscillations) of the potentiometric surfaces in producing units of the intermediate aquifer. These fluctuations appear to coincide with increased pumping out of the intermediate aquifer. These fluctuations in the potentiometric surface are not being transmitted up from the upper Floridan aquifer or down from the surficial aquifer. The potentiometric surface in those aquifers do not exhibit matching fluctuations. It appears that the intermediate aquifer is being impacted almost exclusively by pumping out of that aquifer. (This evidence also confirms the integrity of the relatively thick confining layer between the intermediate and the upper Floridan aquifers, which serves to largely insulate Behrens' well from the influence of pumping out of the upper Floridan.) Behrens seems to contend that, in order to determine adverse impacts on a cumulative basis, the impact of Boran's entire withdrawal, existing and proposed, which is modeled conservatively at approximately 0.3 feet, must be considered. But the District considers an adverse impact to an existing legal withdrawal to consist of an impact large enough to necessitate modification to the producing well in order for it to continue to function as intended. The greater weight of the evidence was that the well on Behrens' property was not designed to be a free-flowing well but was designed to use a pump to operate as intended. At the time Behrens purchased his property, there was a well and a non-functioning pump on the property. Even at the beginning of his ownership, he did not always have running water without a functioning pump. In approximately 1986 or 1987, Behrens installed a new electric pump because it allowed the well to produce more water. After installation of the pump, Behrens raised his trailer an additional five feet (to guard against flooding) which caused it to be approximately ten feet high, meaning the water had to travel that much farther against gravity to reach Behrens' faucets. For most of the time that he has owned the property, Behrens has used a pump on the well. Behrens installed a check valve to allow him to turn off the pump. Sometimes during storm or flood conditions, electric power failed or was cut off, and Behrens was forced to rely solely on artesian flow, which was sometimes adequate in flood conditions during the rainy season. At other times when artesian flow was adequate, Behrens would turn off the pump and rely solely on artesian flow. But it also was sometimes necessary for Behrens to use the pump to get adequate water flow. During the summer of 2001, Behrens' pump failed, and he had to rely solely on artesian flow. As in prior years, artesian flow was sometimes inadequate. In order to be able to get at least some artesian flow for the maximum amount of time, Behrens lowered the spigot on his well by about two feet. Although Behrens is aware that the iron casing of his well could corrode over time, he has never called a licensed well driller or other contractor to inspect his well. Behrens did not test his own well for possible blockage that would result in a lower yield. Furthermore, Behrens admits that his whole outdoor water system needs to be completely replaced. The evidence proved that the proposed use will incorporate water conservation measures, as required by Rule 40D-2.301(1)(k), based on the water conservation plan submitted to the District, installation of a state-of-the-art irrigation system, increase in efficient use of the water, and decrease in the application rate. (Behrens' arguments that Boran has been allowed to use too much water and his question as to the existence of hardpan underlying Boran's fields already has been addressed. See Findings 27 and 35, supra.) The parties have stipulated that Boran has demonstrated that the proposed use will incorporate reuse measures to the greatest extent practicable, as required by Rule 40D-2.301(1)(l). The evidence proved that the proposed use will not cause water to go to waste, as required by Rule 40D-2.301(m), because the irrigation method is the most efficient system that is economically and technically feasible available for sod. (Behrens' question as to the existence of hardpan underlying Boran's fields already has been addressed. See Finding 27, supra.) The evidence proved that the proposed use will not otherwise be harmful to the water resources of the District, as required by Rule 40D-2.301(1)(n), based on the review of all other permit criteria. Propriety of Behrens' Purpose Behrens did not review the District's permit file on Boran's application before he filed his petition. The evidence suggested that he traveled to the District's Sarasota office for that purpose but found on his arrival that the complete permit file was not available for inspection there. Because of the filing deadline, he did not find time to make another attempt to review the permit file of record before he filed his petition. Behrens also did not contact Boran, the District or anyone else with any questions about the proposed agency action before filing his petition. He also did not visit Boran’s property, and made no inquiry as to the irrigation system employed by Boran. Behrens also did not do any additional legal research (beyond what he had done in connection with other water use permit proceedings) before filing his petition. Behrens believed he had all the information he needed to file his petition. Behrens has previously filed at least one unsuccessful petition challenging the District’s issuance of a water use permit. See Behrens v. Southwest Fla. Water Management Dist., DOAH Case No. 00-4801 (DOAH Jan. 29, 2001). DCAP, with Behrens acting as its president, has previously filed at least three unsuccessful petitions challenging the District’s issuance of a water use permit. See, e.g., DeSoto Citizens Against Pollution, Inc. v. Farmland Hydro Limited Partnership, DOAH Case No. 02-232 (Southwest Fla. Water Man. Dist. June 25, 2002); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01- 3056 (DOAH Aug. 22, 2001); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01-2917 (DOAH Sept. 24, 2001). However, none of those proceedings involved a project at the Boran site. It is found that, under the totality of circumstances, Behrens' and DCAP's participation in this proceeding was not for an improper purpose--i.e., not primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of Boran's permit modification. While a reasonable person would not have raised and pursued some of the issues raised by Behrens and DCAP in this proceeding, it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose. It appears that Behrens based his standing in part on the requirement in Rule 40D-2.301(1)(i) that Boran provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal to be provided "on both an individual and a cumulative basis.” (Emphasis added.) Not unreasonably, Behrens argued that this requirement allowed him to base his standing on alleged injuries from all of Boran's withdrawals, existing and proposed, which would create a 0.3- foot drawdown on his well. While his argument is rejected, it cannot be found to be frivolous or made for improper purpose. Behrens' argument that Boran did not meet Rule 40D- 2.301(1)(i) was based on the 0.3-foot drawdown and his position that his well was designed to be artesian free- flowing. While Behrens' proposed finding was rejected, the position he took is not found to be frivolous or taken for improper purpose. Several other arguments made and positions taken by Behrens have been rejected. See Findings 27, 34, 35, and 51, supra, and Conclusions 86-87, infra. But they cannot all be found to have been frivolous or made and taken for improper purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting Boran’s water use permit application number 20009478.005; and denying the motions for attorney's fees and costs under Section 120.595(1), Florida Statutes. Jurisdiction is reserved to enter a final order on the part of the motions for sanctions under Section 120.569(2)(e). DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative 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 this 29th day of July, 2002. COPIES FURNISHED: Alan R. Behrens, President DeSoto Citizens Against Pollution, Inc. 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Mary Beth Russell, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated January 8, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health, including the county health departments such as the St. Lucie County Health Department ("County Health Department"), are responsible for supervising and controlling limited use public water systems. Section 381.0062(3), Florida Statutes (1997). Mr. Gorman is the owner of three duplexes located at 120 and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort Pierce, Florida. The duplexes were built in 1982 and 1983 and each contains two units which are available for rent. Water is piped into each duplex from a well located on the property. The wells providing water to 120 and 122 Laidback Way and to 140 and 142 Laidback Way were inspected by the Department of Health and Rehabilitative Services in May 1994 and found to be satisfactory pending results of water tests. Two-day bacteriological analyses were conducted on May 2 and 3, 1994, on the wells serving these two properties, and the results were satisfactory. 3/ The 1994 inspection report for the well serving the property at 120 and 122 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 30-gallon "p tank"; a 20-gallon water softener filter; and a 30-gallon brine tank. The 1994 inspection report for the well serving the property at 140 and 142 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 20-gallon "p. tank"; a 25-gallon water softener filter; and a 40-gallon brine tank. In a letter dated August 21, 1998, the County Health Department notified Mr. Gorman that he needed to submit the application enclosed with the letter and a $140.00 fee to bring the "permit" to current status for the property located at 140 and 142 Laidback Way. The letter was inartfully composed and conveyed incomplete information regarding the nature of the permit. The letter did, however, contain reference to "Chapter" 381.0062, Florida Statutes, and Chapter 64E-8, Florida Administrative Code, and it also provided notification that Chapter 64E-8 required quarterly sampling of limited use public water systems for bacteria and a lead and nitrate test every three years. The County Health Department sent Mr. Gorman an identical notice, dated August 21, 1998, regarding the property located at 160 and 162 Laidback Way. The County Health Department sent Mr. Gorman a somewhat different letter, dated August 31, 1998, regarding the "Limited Use Public Water Systems" for the property located at 120 and 122 Laidback Way. The letter notified Mr. Gorman that his permit to operate the "referenced water system has expired as of September 30, 1998." The letter reiterated the information contained in the August 21 letter and requested in addition that Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the system, drawn to scale, that accurately identifies the location of the source of water in relation to property boundaries and contaminant sources, i.e., well must be 75 feet from septic system, etc." and an "[e]quipment list: pump, tank, softener, automatic chlorinate, etc., manufacturer, model #, and capacity." Finally, Mr. Gorman was notified of the permitting and testing fees and told that the "[a]pplication with required site and equipment information must be submitted with necessary fees within 30 days receipt of this notification." Mr. Gorman responded with a letter dated October 16, 1998, in which he posed several questions to the County Health Department: Do you understand that these are duplexes? Are all rental properties including single family subject to these regulations? Can you give me a valid reason why rental units of two units or more should be subject to quarterly bacterial testing (I believe the statute only authorizes it annually) and not all other residential properties, public facilities or otherwise that might use well water? Mr. Gorman requested a response to his questions but did not provide the information, applications, and permit fees requested in the letters dated August 21 and August 31. In a letter dated December 14, 1998, sent certified mail with return receipt requested and referenced as a Notice of Violation, the County Health Department notified Mr. Gorman that he was operating limited use community public water systems without a permit at 120 and 122, 140 and 142, and 160 and 162 Laidback Way and that he had not provided the following required information: Signed, dated application form. An operation permit fee of $75.00 for the initial permit. A site plan of the property that accurately identifies the location of the well in relation to property, boundaries and contaminant sources such as septic tank systems. Capacity/size, model and brand information on system components. Well completion report if available or year well was installed if known. Required chemical analysis results (lead and nitrate). Initial satisfactory two-day source (well) water and system water bacteriological tests results. Mr. Gorman was told to contact Bruce McLeod within five days of receipt of the notice. Although Mr. Gorman received the notice on December 16, 1998, he did not respond. The County Health Department had not, as of the final hearing, received any reports of illness attributable to the water from the wells at the subject properties, and it does not have any reason to believe that the wells are contaminated. Mr. Gorman had not, as of the final hearing, submitted the applications, permit fees, or information requested by the County Health Department, and he had no operating permits for the wells providing water to the subject properties. The evidence presented in this case is sufficient to establish that the wells providing water to the three duplexes owned and rented by Mr. Gorman each contains two rental units and are limited use community public water systems. Mr. Gorman must have operating permits for the wells providing water to these properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: Finding that Robert J. Gorman is guilty of three violations of Section 381.0062, Florida Statutes (1997), because he failed to obtain operating permits for the limited use community public water systems he maintains at 120 and 122, 140 and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and Imposing an administrative fine in the amount of $1500.00, or $500.00 for each of the three violations. DONE AND ENTERED this 25th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1999.
Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
