The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
The Issue The issue is whether Sarasota County's application for a permit authorizing the construction of a Class V, Group 3 aquifer storage and recovery well system at the Central County Water Reclamation Facility in Sarasota, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On September 14, 1999, the County, through its Utilities Department, filed with the Department an application for a permit to construct a Class V, Group 3 aquifer storage and recovery (ASR) test well and monitor well system at its Central County Water Reclamation Facility, 79005 South McIntosh Road, Sarasota, Florida. The Department is charged with the responsibility of issuing such permits. On July 19, 2001, the Department issued its Notice of Intent to issue Permit No. 160882-001-UC. The permit authorizes the County to construct one test well to determine the feasibility for the storage and recovery of reclaimed water from the Suwannee Limestone of the Upper Floridan aquifer system at a depth of between 500 and 700 feet below land surface. Also, the County is authorized to construct three monitor wells, one into the target storage zone, the second into the first overlying transmissive unit, and the last into the overlying Arcadia Formation. The storage capacity of the test well is projected to be between one and two million gallons per day. On August 10, 2001, Petitioner, who is a citizen of the State of Florida, resides in Tallahassee, and is a long- time employee of Legal Environmental Assistance Foundation, Inc., filed her verified Petition for Formal Administrative Hearing (Petition) under Sections 120.569, 120.57(1), and 403.412(5), Florida Statutes. In her Petition, she generally contended that the permitting would have the effect of impairing, polluting, or otherwise injuring the water of the State because the proposed injectate (being placed in the well) will not meet primary and secondary drinking water standards, may be harmful to human health, and will violate the minimum criteria for groundwater. She also contends that the permit application was not signed by the proper signatory and that the Department failed to require the County to first drill an exploratory well (as opposed to a test well). While these allegations were not sufficient to demonstrate that Petitioner's substantial interests were affected by the proposed permitting, they were deemed sufficient (subject to proof at final hearing) to satisfy the pleading requirements of Section 403.412(5), Florida Statutes. Water Reuse Generally Water reuse is the use of reclaimed water for a beneficial purpose. Because of Florida's continuing population growth and occasional water shortage, the use of reclaimed water is an important conservation tool. Indeed, in 2002 the Legislature showed strong support for water conservation and reuse by amending Section 403.064(1), Florida Statutes, and adding language which states that "the reuse of reclaimed water is a critical component of meeting the state's existing and future water supply needs while sustaining natural systems." To this end, the County has filed its application for the purpose of using reclaimed water for such lesser uses as irrigation so that the existing high quality fresh groundwater can be used for higher and better purposes such as drinking water for the general public. The Southwest Florida Water Management District (District) has also encouraged the use of reclaimed water by providing funding for this type of program to induce utilities to move forward with reuse programs. In addition, the Department has been proactive in promoting the reuse of water throughout the State in order to conserve water resources. Aquifer Storage and Recovery Aquifer storage and recovery (ASR) is a reuse program encouraged by the Legislature, Department, and District. It involves the storage of water underground in a suitable formation, through a well, during times when water is available to put into the well, and then recovery of that stored water from the well during times when it is needed for some beneficial purpose. Put another way, an ASR operates like an underground storage tank. Water is placed into the ASR wells (by means of pumping) during recharge periods when it is raining and there is no demand for reclaimed water. When the water is pumped into the well, a stored water bubble is created by using buffer zones made of water with more salinity than the stored water. These buffer zones are designed so that there can be full recovery of the stored water. The recovery rate is generally around 100 percent. There are three ways to store reclaimed water: surface ponds, storage tanks, and ASR. The ASR storage method is the most efficient method of storing reclaimed water, and it has significant environmental, utility, and economic benefits. The ASR method has no impact on wetlands and ecosystems, and unlike pond storage (and to a lesser degree storage tanks), it does not require the use of large surface areas and is not affected by evapotranspiration and seepage. (There is typically a 60 percent loss of water due to evaporation in surface storage areas.) It also results in cost savings (up to a 50 percent reduction in capital costs) and avoidance of wetlands impacts. One of the goals of the County's Comprehensive Plan is to maximize the use of reclaimed water for irrigation purposes. Because other storage methods have proved to be inefficient, ASR is the County's preferred storage method to meet this goal. At the time of the final hearing (August 2002), there were at least fifty-six ASR systems operating outside the State of Florida (and around one hundred more in various stages of development) and eleven ASR systems successfully operating in the State, the first one having been established in 1983. At that time, there were also two ASR test programs underway in the area, including one in the Englewood Water District, a few miles to the south of the proposed project, and the Northwest Hillsborough ASR program, which is located just north of the County. Also, ASR systems are located in Manatee County and near the Peace River, which is in the same storage area being proposed here. Therefore, the County has the benefit of drawing upon twenty years of experience with this type of system. The Permit The County began an informal water reuse program in 1988, when it first used effluent disposal for irrigation purposes at a local golf course. A formal program (the Reuse Master Plan) was commenced in 1994; however, the County still lacks the storage capacity to meet the seasonal demands of its reuse customers.3 Without storage, any excess water must be discharged and lost. In order to meet the County's goal of maximizing reclaimed water use, it must be able to adequately store reclaimed water. Due to projected population growth and issues concerning management of limited resources, in 1997 the County began considering the use of ASR as a means to better manage its reclaimed water supply and demand for those facilities which serve the North County Reuse System. If all necessary permits are obtained, the County intends to use reclaimed water from its Central County wastewater facility. Currently, that effluent receives advanced tertiary treatment with deep bed filtration and high level disinfection. The proposed test well will be approximately 700 feet deep; at that depth, the injection (or storage) zone will consist of the Suwannee Limestone formation of the Upper Floridan aquifer system. The storage zone is brackish, with the water quality or salinity having about six times the acceptable degree of salinity for a drinking water source. It is anticipated that the total dissolved solids (TDS) concentration in the injection zone will be greater than 3,000 TDS. If water quality at the proposed injection zone is greater than 3,000 TDS, this fact will be revealed during the construction of the test injection well and during the various tests to be conducted during construction. (Assuming this level of TDS is found, then at that point the County would have to provide reasonable assurance that the water reclamation facility is providing full or principal treatment to the domestic waste.) The evidence establishes that there is some level of transmissivity in the confining layer overlying the proposed injection zone. That is to say, there is some small degree of connectivity between the proposed injection zone and the aquifer above it. The actual level of transmissivity will be determined based upon tests run during the construction of the first monitor well. The effluent produced from the County's water reclamation facility meets drinking water standards. If the plant is unable to produce effluent that meets or exceeds the applicable water quality standards, this issue is an operational concern which can be addressed in a permit modification authorizing operational testing. Under the Department's permit process, if the construction permit is approved, the County will construct a monitor well to obtain more site-specific information concerning such things as the geology, hydrology, and water quality at the site. (At this point, while the County has published literature sources and regional geologic information from two nearby ASR systems using the same storage area to rely upon, it has no specific data for the very small parcel where the well will be constructed.) Once the information is obtained, an engineering report is prepared and submitted to the Department. That report contains a wide array of technical data, including construction data, hydrogeologic data, formation samples, water quality samples, hydraulic data, core data, Packer data, and geophysical data. This information is then used by the Department (and a special advisory committee called the Technical Advisory Committee) to evaluate whether the site can be authorized for cycle testing and later for operational purposes. If cycle testing is appropriate, the County must then request a modification to its construction permit to authorize cycle testing of its ASR well. That modification, and any others that may be warranted by the new information, are "final agency action subject to the procedural safeguards contained in Chapter 120, F.S." Fla. Admin. Code R. 62- 528.100(2). When the test injection well is constructed and eventually placed into operation, monitor wells will be used to monitor background water in both the injection zone and in the two aquifers overlying the proposed injection zone. However, until further Department approval is obtained, no injection of reclaimed water is authorized; the permit being sought here authorizes only the construction of the well itself. Finally, Florida Administrative Code Rule 62- 528.640(1)(a) requires that the County obtain a separate operation permit after the construction permit has been issued and testing completed. Criteria and Standards for a Class V Well Florida Administrative Code Chapter 62-528 governs all injection wells defined as Class I, III, IV, or V wells. (In Class II wells, the injected fluids are used in connection with oil and natural gas production and are regulated by the Florida Geological Survey under Chapter 377, Florida Statutes.) The category of wells in which the County seeks a permit is a Class V, Group 3 permit, which includes all domestic wastewater wells. See Fla. Admin. Code R. 62- 528.300(1)(e)3. A Group 3 well involves the injection of fluids that have been processed through a permitted domestic wastewater treatment plant. Even though the County is requesting a permit for a Class V well, at the request of the Department, it submitted a different (and more stringent) type of application (a "900" application) since the Department has the authority to apply "any of the criteria for Class I wells" if it believes that the well may cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of primary or secondary drinking water standards. See Fla. Admin. Code R. 62-528.605(2). (A Class I well is a well used to inject hazardous waste below the lowermost formation containing an underground source of drinking water.) In this case, the Department opted to apply certain Class I construction standards for the well, in addition to the normal standards for Class V wells. Those standards are found in Florida Administrative Code Rule 62-528.400. This means that the County will be held to a higher standard than a general underground injection control permit. Florida Administrative Code Rule 62-528.605 contains the Class V well construction standards. For the following reasons, the County has given reasonable assurance that all criteria will be met. Subsection (1) of the rule requires that "a well shall be designed and constructed for its intended use, in accordance with good engineering practices, and the design and construction shall be approved by the Department with a permit." The evidence clearly establishes that good engineering practices have been followed by the County for the design and construction of the well. Subsection (2) requires that an applicant design and construct the well so that it will not "cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of a primary or secondary drinking water standard . . . or may cause fluids of significantly differing water quality to migrate between underground sources of drinking water." Subsection (3) is also directed at the migration of fluids. The evidence shows that the migration of fluids between aquifers will be prevented as a part of the design and construction of the ASR well program. The design chosen by the County has been proven to prevent migration of fluids between aquifers, and it will preserve the integrity of the confining beds. The combination of steel casing and cementing prevents the migration of fluids along the borehole. The well will be constructed by a Florida licensed contractor, as required by Subsection (4). The remaining criteria in the rule will be satisfied during the construction process. Florida Administrative Code Rule 62-528.620 contains reporting requirements for Class V wells. All of these requirements are included in the draft permit and will be met by the County. The Department has also included Special Condition 1(h) in the draft permit, which provides that nothing will be injected into the well that does not meet the Federal Primary Drinking Water Standard. This condition is drawn from Florida Administrative Code Rule 62-528.307, which specifies general conditions to be included in underground injection control permits. In accordance with this condition, the County will monitor the movement of fluid to ensure that there are no violations. The County has also demonstrated that there will be no hazardous waste injection, as prohibited by Florida Administrative Code Rule 62-528.600(1)(a). Finally, the requirements of Florida Administrative Code Rule 62-528.630(3) do not apply at this time since the proposed permit is only for construction of a well, and not the injection of water. Class I Well Construction Standards Because the Department has imposed more stringent construction standards on the County, the Class I well construction standards found in Florida Administrative Code Rule 62-528.410(1) come into play. The County has demonstrated that it has complied with the requirement that the well be cemented and cased. In addition, the County has considered corrosion protection in the cementing and casing of the proposed well. Because the casing will be cemented, coating is not required. Finally, there will be no open annulus (spacing between the casings and the bore hole) in the ASR test well. Other Requirements Drilling Geophysical surveys will be conducted during the pilot hole drilling stages to collect hydrogeologic information. Further, drill stem tests will be conducted throughout the drilling, and a driller's log will be maintained. See Fla. Admin. Code R. 62-528.410(3). Casing Steel casing will be used, taking into consideration the possible corrosion of steel. The life expectancy of the well was considered, as required by Florida Administrative Code Rule 62-528.410(4)(a), and was determined to be unknown. Cement Type 2 cement will be used, which is sulfate resistant and is specifically designed for use in regions such as Florida. Testing Geophysical logs will be used during the construction and testing of the well to verify the physical conditions of the well and confirm that construction is proceeding according to the plan. Also, geophysical surveys will be conducted during pilot hole drilling stages to collect subsurface hydrogeologic information. Environmental concerns Once a drilling contractor is selected, the location for the disposal of drilling fluids will be submitted for Department approval in accordance with Special Condition 1(b) in the draft permit. Monitor well construction standards The monitor well will meet all construction requirements under Florida Administrative Code Rule 62- 528.420. (The same standards that are applied to Class V wells are also applied to monitor wells.) General design considerations Exploratory pilot hole drilling stages will be conducted to collect hydrogeologic information, and complete sets of geophysical surveys will be performed. Because cement generates heat, temperature surveys will be run as a part of the construction sequence to verify coverage of the cement. This means that tools will be lowered into the hole after each cementing stage to verify coverage. Monitoring requirements Florida Administrative Code Rule 62-528.425(1)(d) requires that an applicant perform "a demonstration of mechanical integrity . . . at least once every five years during the life of the well." Details to accomplish this are found in both the application and the draft permit. Florida Administrative Code Rule 62-528.425(1)(f) requires that the background water quality of the injection zone and monitoring zone be determined prior to injection. The County will perform this task before injection occurs. Florida Administrative Code Rule 62-528.425(1)(g) requires that monitor wells be installed above the injection zone near the project. The County will construct three wells, as required by the rule. They will also be placed at a sufficient distance from the project, as required by Florida Administrative Code Rule 62-528.425(1)(h), and the specific monitoring intervals are detailed in the draft permit. Reporting requirements The Department requires periodic data reports and progress reports regarding eight separate types of information. See Fla. Admin. Code R. 62-528.430(1)(a). These reporting requirements will be performed and followed. Because a Class V well may be required to be plugged and abandoned, the Department requires a plugging and abandonment report. See Fla. Admin. Code R. 62-528.625. All requirements under this rule have been met, and the County has the financial resources to accomplish this task, when required. General Class I permitting requirements Florida Administrative Code Rule 62-528.440 sets forth general permitting requirements for Class I and III wells. Because the Department has opted to impose certain Class I criteria on the County's application, some of the criteria in this rule apply. They include special conditions 1(a), (c), and (e) in the permit for well construction, system modification, and fluid injection, all of which have been, or will be, met by the County. In addition, the duration for the operation permit cannot exceed five years, and the County was required to submit an application for a permit which conformed with the requirements of the rule. As a part of its application, the County established an area of review for the construction permit, taking into account the zone of endangering influence. See Fla. Admin. Code R. 62-528.300(4). (An area of review is the area surrounding an injection well, including the area of possible endangering influence.) This requirement was met because the established area of review is one mile even though the predicted area of influence is expected to be no more than 400 feet. As a part of the preceding analysis, the County also conducted an area of review study, as required by Florida Administrative Code Rule 62-528.440(6)(a). In doing so, the County evaluated the impact on the ASR well, and the impact the ASR well would have on the surrounding area. That evaluation determined that there are no water supply wells within the area of review. Because the construction permit only has a duration of five years, and given the County's supporting information submitted with the area of influence study, the Department has not required that the County provide a corrective action plan. See Fla. Admin. Code R. 62-528.300(5)(a). Class I well construction permit criteria All guidelines for constructing the well have been followed, and the construction of the well will not be a source of pollution. The County has provided reasonable assurance that the project will function in accordance with the requirements of Florida Administrative Code Chapter 62- 528. Hydrological modeling Finally, Florida Administrative Code Rule 62-528.405 specifies criteria for evaluating the geologic and hydrologic environment of Class I wells. The County has satisfied all criteria in the rule. Other Issues Exploratory well Petitioner contends that the Department should require the County to construct an exploratory well, as defined in Florida Administrative Code Rule 62-528.603(1), rather than a test well. That rule defines an exploratory well as one being "drilled for the specific purpose of obtaining information to determine the feasibility of underground injection at the proposed site." However, Florida Administrative Code Rule 62-528.450(1)(b) requires an exploratory well only "for those projects located in an area where available information is lacking concerning geologic or hydraulic confinement or existing information indicates that geologic or hydraulic confinement may be poor or lacking." For example, an exploratory well would be required in a remote area (such as certain parts of Polk County) where the Department had insufficient literature, studies, or prior history concerning the general geology across and around the site. In this case, two nearby ASR systems are located in the Englewood Water District and near the Peace River and use the same storage zone as that proposed by the County. Those systems have been operating for a number of years, and the County and Department can draw upon that experience. Given this significant regional geologic information, an exploratory well is not required. More importantly, the requirement for an exploratory well applies only to Class I well construction, and not Class V wells, and the Department properly exercised its discretion to not apply that requirement to the County's Class V application. Signature on the application and other documents Florida Administrative Code Rule 62-528.340(1)(c) requires that all permit applications by a local government be signed by "either a principal executive officer or ranking elected official." Also, subsection (2) of the same rule requires that "reports required by permits and other information requested by the Department shall be signed by a person described in subsection (1) of this section [a principal executive officer or the highest ranking elected official], or by a duly authorized representative of that person." Petitioner contends that these requirements were not met. The County's application was signed by James E. Caldwell, who was then the Manager of Sarasota County Utilities. At that time, Mr. Caldwell had overall responsibility for the County's utility operations. On August 27, 2002, James L. Ley, the County Administrator (and principal executive officer of the County), also executed the original copy of the application. (That is, on that date he signed the original application underneath Mr. Caldwell's signature.) By doing so, Mr. Ley cured any previous technical deficiency in the application. Responses to requests for additional information which were submitted to the Department during the review process were signed by one of the County's outside consultants. However, on January 13, 2002, Mr. Ley submitted a letter to the Department authorizing various County employees and agents to act on his behalf in processing the instant application. Accordingly, the outside consultant was a duly-authorized representative of the chief executive and was authorized to sign those documents. Satisfaction of injection criteria Petitioner also contends that before a construction permit may be issued, the County must meet all principal treatment and disinfection requirements, as required by Florida Administrative Code Rules 62-610.466 and 62-528.563. However, those rules apply to permits which authorize the injection of reclaimed water into the groundwater. Here, the requested permit does not authorize injection, and therefore those requirements do not apply. Groundwater criteria Even though Petitioner conceded at hearing that the issue of whether the construction of the proposed wells would harm the environment was not raised in her Petition, the County provided reasonable assurance that this was not an issue of concern. Adequacy of permit conditions Petitioner also suggested at hearing that the proposed conditions in the permit are insufficient. However, she failed to show in what respect they were insufficient or how they should be amended. Water quality concerns Florida Administrative Code Rule 62-528.605(3) requires that a Class V well be constructed so that its intended use does not violate the applicable water quality standards. On this issue, the evidence establishes that the construction of the proposed test well and monitor system will not discharge, emit, or cause pollution. Indeed, a well and monitor station does not emit or discharge pollution and, if constructed according to the technical requirements of Florida Administrative Code Chapter 62-528, does not cause pollution. Therefore, the County's compliance with the technical requirements of the Department's regulations is reasonable assurance that the proposed system will not cause pollution. I. Request for Attorney's Fees and Costs In its Proposed Recommended Order, the County has requested an award of attorney's fees and costs on the theory that Petitioner is a non-prevailing party who has participated for a "frivolous, meritless, and improper purpose" within the meaning of Section 120.595(1), Florida Statutes. This argument is based on the assertion that Petitioner is a non- prevailing party, that is, she failed to substantially change the outcome of the proposed final agency action which is the subject of this proceeding, and she "failed to produce any witnesses or evidence to support [her] claim that the proposed permit that was the subject of this proceeding should not be issued." While it is true that Petitioner is a non-prevailing party, she attempted to utilize the testimony of three expert witnesses previously retained by the City of Venice, a former party in Case No. 01-3516. Those subpoenas, however, were quashed on August 16, 2002, and that ruling was memorialized in an Order dated August 19, 2002, or just before the final hearing began. Without those witnesses, Petitioner's presentation was obviously limited in some respects.4 Further, until the final hearing, Petitioner assumed that evidence in support of her allegation that the injectate would harm the water quality would be admissible and relevant. (As this Recommended Order clearly points out, however, not a single drop of water can be injected into the well until a modification of the permit is obtained, and therefore such evidence is irrelevant.) During the course of the hearing, the undersigned sustained objections by the County and Department to the introduction of such evidence. This ruling had the effect of limiting the scope of the issues to be tried. Despite these limitations, her participation cannot be described as being frivolous or meritless, as claimed by the County, and it is found that she did not participate for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. 160882-001- UC authorizing the County to construct one Class V, Group 3 aquifer storage and recovery injection well and monitor well system in Sarasota County, Florida. DONE AND ENTERED this 19th day of April, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 19th day of April, 2004.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a permit to Out of Bounds, Inc. (Out of Bounds, or applicant), to construct, operate, and close a construction and demolition debris disposal facility (C&D facility) in Hernando County.
Findings Of Fact On September 8, 2008, Out of Bounds applied to DEP for a permit to construct, operate, and close an unlined C&D facility on 26 acres located at 29251 Wildlife Lane, Brooksville, Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999. The Out of Bounds application was for a new permit, not for the renewal of an existing permit. Robert McCune owns property adjacent to the proposed C&D facility. He and his wife reside on the property, keep horses in stables on the property, and use the property for horseback riding business, which includes hosting public horseback riding events. Hernando SSK was formed by David Belcher and one or more others to continue the business being operated by Paige Cool when she died during this proceeding. The business is conducted on ten acres of property Cool owned approximately one mile west of the proposed C&D facility. Belcher is one of two co-personal representatives of Cool’s estate. Belcher and his wife hold a mortgage on the property. When the estate is finalized, the Belchers plan to assign their mortgage to Hernando SSK. It is not clear who will own the property after the estate is finalized, or how Hernando SSK will be authorized to continue the business on the property. Western pleasure and trail-riding horses are boarded on the Cool property, which is known as At Home Acres. The business also has access to 20 adjoining acres to the east, which are used for grazing. Access to the horseback riding trails in the Withlacoochee State Forest is conveniently located just across Wildlife Lane from the property, to the north. A manager resides in a double-wide trailer on the property, and another trailer and a barn to the east of it are leased out. There is a potable water well on the property, which is the source of drinking water for the manager and lessees. Well Setback In the application process, Out of Bounds disclosed two potable water wells within 500 feet of the proposed landfill disposal area. The application provided that those wells would be converted to non-potable use. Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area. When the Knox well was brought to the attention of DEP, Out of Bounds admitted that the well was permitted for potable use but took the position that it was not for potable use because it was not in use, was not connected to a source of electricity, and appeared to be abandoned. Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline-powered generator so that it will be ready for use when needed. During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on property once owned by Larry Fannin and now owned by his daughter and son-in- law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well. In mid-2008, the McCunes began to reside on their property. At first, they resided in a mobile home. They ran pipes from the well to the mobile home to provide drinking water. Eventually, later in 2008, they began construction of a residence on the property and ran pipes from the well to the house to provide drinking water to the house. The well was being used for drinking water before the Out of Bounds application was complete. (They also use water from the well from time to time for irrigation purposes--i.e., when they host horseback-riding events on weekends, they truck water from the well to their horseback-riding arena to apply to the ground to control dust.) Groundwater flows from the disposal area of the proposed landfill to the west and southwest. The Knox and McCune wells are down-gradient of the groundwater flow from the proposed disposal area. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)-(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition. Liner and Leachate Collection Existing unlined C&D facilities in the Southwest District report various parameters that exceed groundwater quality standards and criteria. These include arsenic, benzene, iron, aluminum, nitrate, ammonia, vinyl chloride, methylene chloride, 3- and 4-methyl phenols, sulfate, and total dissolved solids (TDS). Arsenic and benzene are primary (health-based) groundwater quality standards. The others are secondary standards that relate to taste, odor, and aesthetics. The likely source of the reported arsenic violations in the Southwest District is wood treated with chromate copper arsenate (CCA). See Fla. Admin. Code R. 62-701.200(11). Out of Bounds proposes to not accept CCA-treated wood and to use a trained “spotter” to exclude CCA-treated wood from the landfill. This is an appropriate measure to prevent arsenic violations, and is now required for C&D facilities. See Fla. Admin. Code R. 62-701.730(7)(d), (8), and (20). It was not clear from the evidence whether the C&D facilities in the Southwest District with arsenic violations accepted CCA-treated wood. Even if they did, the operational plan proposed by Out of Bounds to exclude CCA-treated wood and to use a trained spotter is not a guarantee that no CCA-treated wood will enter the landfill. A C&D facility would not be expected to dispose of material that would result in benzene contamination. The reported benzene violations suggest that unauthorized material contaminated with benzene nonetheless makes its way into C&D facilities in the Southwest District. The evidence was not clear whether a trained spotter was used at those facilities. Whether or not a spotter was used at those facilities, having a trained spotter would not guarantee that no benzene-contaminated material will enter the landfill proposed by Out of Bounds. Out of Bounds suggested that ammonia violations result from C&D facilities accepting yard trash. However, there was no evidence of a connection between acceptance of yard trash and ammonia violations. The operational plan proposed by Out of Bounds to “cover as you go” is the accepted best practice to control hydrogen sulfide odor, which comes from wet drywall. Out of Bounds suggested that its cover plan would prevent any sulfate violations, but there was no evidence to prove it. There was no evidence as to whether the C&D facility proposed by Out of Bounds would be substantially different from the other existing C&D facilities in DEP’s Southwest District. Absent such evidence, Out of Bounds did not provide reasonable assurances that its proposed facility would not cause groundwater quality violations. The site for the C&D facility proposed by Out of Bounds is internally drained. There are no surface waters onsite or within a mile of the site. There was no evidence of a surficial aquifer above the Floridan aquifer. Rainfall entering the Out of Bounds property migrates downward into the Floridan aquifer. Once in the aquifer, there is a horizontal component of groundwater water flow in a generally southwest direction, towards the Knox and McCune wells. Contaminated leachate from the proposed C&D facility would migrate with the groundwater. Out of Bounds suggests that a thick clay layer under the site of its proposed facility would prevent the downward migration of groundwater into the Floridan aquifer. There are several reasons why the clay layer does not provide the reasonable assurance of a liner that contamination from the proposed landfill would not reach the Floridan aquifer. Clay is much more permeable than a geomembrane meeting DEP’s specifications for use as a liner. The clay on the proposed site is on the order of at least a thousand times more permeable. (Out of Bounds appeared to confuse the permeability of such a geomembrane with the allowable permeability of the geosynthetic clay layer or compacted clay layer underlying the geomembrane. Cf. Fla. Admin. Code R. 62-701.730(4)(f).) In the application process, Out of Bounds relied on the clay layer for purposes of sinkhole prevention and mitigation, not for reasonable assurance that no liner was needed. The limestone formation underlying the site is highly variable, with numerous pinnacles; for that reason, the thickness of the clay layer also is highly variable, making it difficult to excavate the proposed landfill with complete assurance that the clay layer would not be penetrated. To provide reasonable assurance for purposes of sinkhole prevention and mitigation, Out of Bounds proposed to leave or create a clay layer at least six feet thick underlying the bottom of the proposed landfill. Because the site is in an area of high recharge to the Floridan aquifer and drains entirely internally, the clay layer alone does not provide reasonable assurance that there will be no downward migration of contaminated groundwater to the Floridan aquifer. Reasonable assurance requires a liner and leachate collection system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP deny the application for a C&D facility made by Out of Bounds. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2011. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 233 Third Street North, Suite 101 St. Petersburg, Florida 33701-3818 Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100 St. Petersburg, Florida 33743-1100 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000
The Issue The issue in these cases is whether Respondent, the Florida Department of Environmental Protection, has provided Respondent, Southwest Florida Water Management District, with reasonable assurances that the activities proposed in its Noticed General Environmental Resource Permit No. 4715785.00 meet the conditions established in Section 373.413, Florida Statutes, and Rules 40D-400.215 and 40D-400.485, Florida Administrative Code, for issuance of general environmental resource permits.
Findings Of Fact The Parties. Big Blue Springs, Inc., owns property located adjacent to Big Blue Springs. Big Blue Springs, Inc., acquired its interest from Big Blue Springs Property Owners' Association, Inc. (hereinafter referred to as the "Property Owners' Association"). The individual Petitioners in these cases own property located along the current water flow from Big Blue Springs with the exception that the evidence failed to prove whether Mr. and Mrs. Manfred Rietenbach own property in proximity to Big Blue Springs. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. Respondent, Southwest Florida Water Management District (hereinafter referred to as the "SWFWMD"), is a public corporation with regulatory jurisdiction over the administration and enforcement of surface water management system rules pursuant to Part IV, Chapter 373, Florida Statutes. Big Blue Springs. Big Blue Springs (hereinafter referred to as the "Spring"), is a moderately sized freshwater spring located in Citrus County, Florida. The pool of the Spring is approximately 75 feet in diameter. Water flows from the Spring at rates which vary between 11.1 and 19.6 cubic feet per second. The Spring is located immediately adjacent to the Withlacoochee River, an "Outstanding Florida Water." The Spring is located within the State of Florida's sovereign lands. Therefore, the Spring comes under the jurisdiction of the Department. Prior to the 1960's, the Spring connected directly with the Withlacoochee River only a few feet from the location of the pool of the Spring. The natural flow of water from the Spring was in an east-northeast direction. Water also flowed in a northwesterly direction into wetlands which surrounded the Withlacoochee River. The Diversion of the Spring's Natural Flow. During the 1960's a developer constructed a dike around the Spring damming up the Spring's natural connection with the Withlacoochee River. The dike was illegally placed on state sovereign lands under the Department's jurisdiction. The developer also dredged a canal (hereinafter referred to as the "Spring Run") in a northwesterly direction from the Spring. The Spring Run connected the Spring with the Withlacoochee River. The distance from the pool of the Spring to the Withlacoochee River is approximately one half mile. The dredging of the canal and the damming of the natural connection with the Withlacoochee River diverted the portion of the water discharge from the Spring that had flowed directly into the Withlacoochee River down the Spring Run. As a result of the damning of the Spring, all water from the Spring has flowed down the Spring Run since the 1960's. The construction of the dike around the Spring and the dredging of the Spring Run was carried out without a permit or sovereign land-use authorization. The Spring Run Today. The Spring Run is not of a uniform depth or width. At places, the Spring Run is 15 to 20 feet wide. The depth of water in the Spring Run also varies throughout the year. At times, the area surrounding the Spring and Spring Run is flooded. At other times, water in the Spring Run is of minimal depth. The Spring Run has developed into a functioning ecological wetland system consisting of various marine species and habitats. A small one-lane bridge spans the Spring Run approximately a quarter of a mile from the Spring. Access to the Spring Today. There is no legal access by land to the Spring. Even if access by land were legally available, such access would be difficult because the dike is approximately 10 feet tall and has steep slopes. Access by water to the Spring is limited to access through the Spring Run. Access along the Spring Run to the Spring is, however, not possible for many boats due to the lack of water depth. When water levels are low, access is further reduced. Access along the Spring Run during times of high water is also limited due to the small bridge that spans the Spring Run. At times, the water is too high for even small boats to pass under the bridge. Despite its limitations, the Spring Run is navigable, at least to small boats, the majority of the year. The Board of Trustees of the Internal Improvement Fund's Decision to Remove the Dike. In March 1990, the dike around the Spring was mysteriously breached, reconnecting the Spring and the Withlacoochee River. The Property Owners' Association obtained permission from the Army Corps of Engineers and the Department to repair the breach. After repairing the breach in the dike, the Property Owners' Association applied to the Governor and Cabinet, sitting in their capacity as the Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Trustees"), for an easement allowing them to maintain the dike for 25 years. In response to the request of the Property Owners' Association for an easement, a public meeting was held by the Department in Inverness, Citrus County, Florida, in the summer of 1993. The meeting was advertised in the local newspaper as an opportunity for the public to discuss the Spring and what should be done about public access to the Spring. That meeting was well attended by members of the public, including several Petitioners. Following the public meeting and after discussions with the Property Owners' Association, the Department initially indicated that it would recommend to the Trustees that the easement application be approved. That recommendation was based upon negotiations with, and an offered settlement from, the Property Owners' Association: Staff believed that the homeowners' offer represented a reasonable compromise for this issue on the condition that the homeowners' association agreed to hold the state harmless for any liability arising out of the continued presence of the dike and to issue a quitclaim deed to the Board of Trustees for all lands located below the historic ordinary high water line of the spring. DEP Exhibit 16. Throughout the period of time during which the Department considered the Property Owners' Association's requested permission to maintain the Spring dike, the Property Owners' Association was aware of the Department's concern over the need to ensure public access to the Spring. On October 21, 1993, the Property Owners' Association informed the Department that it would not agree to all the terms of the settlement the Department desired. In particular, the Property Owners' Association was unwilling to give the Department assurances concerning public access to the Spring. As a consequence, the Department decided not to support approval of the easement application. The Property Owners' Association was informed of the Department's decision by letter dated October 27, 1993. A copy of the letter was also sent to Ms. Spence. The Department informed the Property Owners' Association that it was going to make the following recommendation to the Trustees: RESCIND STAFF'S APRIL 6, 1993, LETTER, DIRECT STAFF TO HAVE THE DIKE REMOVED, AND HAVE THE SPRING RESTORED TO ITS NATURAL FEATURES. The meeting at which the Trustees was to consider the Property Owners' Association easement application was scheduled for November 9, 1993. The meeting was advertised in Vol. 19, No. 43, Florida Administrative Weekly (October 29, 1993). The notice did not specifically indicate that the Trustees would consider the removal of the dike or the permit which is the subject of this proceeding at the meeting. The Property Owners' Association easement application and the Department's recommendation concerning the easement and removal of the dike were included on the agenda for the November 9, 1993, meeting of the Governor and Cabinet. The November 9, 1993, meeting of the Governor and Cabinet was held in Tallahassee. The meeting was open to the public and recorded. The Property Owners' Association was represented at the meeting. Ms. Spence also attended the meeting. During the meeting a number of issues concerning the fate of the Spring were discussed, including whether an easement should be granted to the Property Owners' Association and whether the Department's recommendation should be approved. Public access to the Spring was discussed by, and constituted a primary concern of, the trustees. The Trustees also discussed the impact which boats would have on the Spring if allowed into the Spring, the impact on the Spring Run if the restoration of the Spring was ordered, and the intrusion of tannic-stained water from the Withlacoochee River into the Spring. A copy of the permit at issue in this proceeding was not available at the November 9, 1993, Trustees' meeting. Nor were conceptual plans for the restoration of the Spring available. The Trustees denied the requested easement and directed the Department "to have the dike removed and the spring restored to its natural features." The Trustees' decision was subsequently challenged before the Division of Administrative Hearings by the Property Owners' Association. A Final Order was entered by the Trustees on November 16, 1995, rejecting the challenge. The Department's Efforts to Carry Out the Trustees' Decision. In February and May 1996, following entry of the Final Order, the Deputy Secretary of the Department met with Department staff. Pursuant to delegated authority, the Deputy Secretary directed staff to proceed with the removal of a section of the dike in order to restore the flow of the Spring into the Withlacoochee River at the approximate location of the natural flow from the Spring into the river. On or about September 23, 1996, the Department submitted an application to the SWFWMD for a permit to restore the Spring. The application included the proposed removal of a portion of the dike adjacent to the Withlacoochee River and the stabilization of the dike with limestone rip-rap. On October 22, 1996, the SWFWMD issued Noticed General Environmental Resource Permit No. 4715785.00 to the Department approving the Big Blue Springs Restoration Project, subject to the general conditions of Rule 40D-400.215, Florida Administrative Code, and the special conditions of Rule 40D- 400.485, Florida Administrative Code. At the suggestion of some of the Petitioners, the Department retained Paul Pilney, a soil scientist with the Soil Conservation Service of the United States Department of Agriculture. Mr. Pilney conducted soil soundings, soil borings, and surveys of the area in an effort to estimate the location and elevation of the original Spring runoff. Using Mr. Pilney's findings, the Department modified its proposed location of the breach in the dike and reduced the width of the breach. The depth of the proposed breach was not, however, modified. The Department submitted modified plans and an amendment to its permit application to the SWFWMD on July 27, 1997. The SWFWMD reviewed and approved the modifications and incorporated them into the permit. The Department held at least one public meeting on the proposed restoration project. The proposed restoration project was approved by the Secretary of the Department. The Proposed Restoration Project. The Department's proposed restoration project (hereinafter referred to as the "Restoration Project") is technically simple: it entails the removal of a portion of a water control structure, a dike, in order to partially restore the natural flow of water between the Spring and the Withlacoochee River. In order to carry out the Restoration Project, the Department has proposed breaching the dike by removing approximately 500 cubic yards of earth from the dike between the Spring and the Withlacoochee River. The Department has proposed that the breach be graded to an elevation of 31 feet above mean sea level. This depth was based upon Mr. Pilney's findings of the estimated natural depth of the Spring runoff. The depth is only an estimate, however. There is no absolute way of determining the precise depth of the natural Spring runoff into the Withlacoochee River. The Department has proposed the use of floating barriers and turbidity screens while the Restoration Project is being carried out. The Restoration Project will be completed by the placement of limerock rip-rap along the slopes and back of the Spring to control erosion. The limerock rip-rap will consist of limerock boulders and/or rubble, weighing approximately 135 pounds per square foot. Limerock will be used because it occurs naturally along the Withlacoochee River. The disturbed areas around the Spring will also be revegetated immediately after construction. "No Motorboating" signs will be erected around the area in the interest of public safety and in an effort to limit prop dredging by boats that enter the Spring. I. Impacts from the Restoration Project. The Restoration Project will not cause pollution. Water quality and health standards will not be violated. The Restoration Project will not degrade water quality or cause a violation of state water quality standards, including special standards set for Outstanding Florida Waters. Although dark, tannic-stained water from the Withlacoochee River will mix with the nearly crystal clear water of the Spring on occasion, the water quality of the Spring will not be degraded or adversely impacted. Water from the Spring already mixes with the Withlacoochee River. After the breach, it will just mix with the Withlacoochee River a little sooner. The Restoration Project will improve public access to the Spring. The need to access the Spring by locating and traversing the Spring Run will be eliminated. Accessing the Spring illegally by land will also be eliminated. Access to the Spring will be available by the larger boats which can navigate the Withlacoochee River. The 31-inch depth to which the Department has proposed that the new access channel be cut is lower than the current depth of the Spring Run. As a consequence, the amount of water which will run down the Spring Run will be dramatically reduced by the Restoration Project. The impact of the reduced water flow in the Spring Run will reduce the already somewhat limited navigability of the Spring Run. The Spring Run will remain navigable only on an intermittent basis. The limited flow of water through the Spring Run will also reduce the extent to which the Spring Run currently is a functioning ecological wetland system. If the depth to which the breach is graded were less than the 31 inches proposed by the Department and were limited to a depth no more than that of the flow from the Spring into the Spring Run, there would be no appreciable decrease in the public access to the Spring which the Department and the Trustees wish to insure is provided by the restoration of the Spring. Public access would still be readily available, and the negative impact on the ecological wetland system of the Spring Run and the navigability of the Spring Run would be decreased.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Southwest Florida Water Management District authorizing the Department of Environmental Protection to proceed with construction under Noticed General Environmental Resource Permit No. 4715785.00, modified to provide that the depth of the breach between the Spring and the Withlacoochee Rive being limited to a depth of no more than that of the flow from the Spring into the Spring Run. It is further RECOMMENDED that the request for hearing filed by Mr. and Mrs. Manfred Rientenbach be Dismissed. DONE AND ENTERED this 17th day of August, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 17th day of August, 1999. COPIES FURNISHED: Clark A. Stillwell, Esquire Brannen, Stillwell and Perrin, P.A. Bank of Inverness Building 320 Highway 41 South Inverness, Florida 34451-0250 Peter A. Grant 7325 North Spring Run Terrace Hernando, Florida 34442 Guy Marwick 12950 Northeast First Street Road Silver Springs, Florida 34488 Norma L. and Thomas Spence Post Office Box 246 Holder, Florida 34445 Judith K. Hall and Russell D. Hall 6875 East Halls Spring Path Hernando, Florida 34442 Janifer Carlson and Richard Carlson Post Office Box 450 Marble, North Carolina 28905 Mr. and Mrs. Manfred Rietenbach 10825 Nina Street Largo, Florida 33778 Margaret M. Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Andrew J. Baumann, Assistant General Counsel Keith L. Williams, Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 Kathy Carter, Agency Clerk Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahasee, Florida 32399-3000
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluation of the subject application. An application for consumptive use permit has been filed in proper from by Trafalgar Developers of Florida, Inc., and it was admitted into evidence as Exhibit 1. The water source are two existing wells located on a 580.1 acre tract of land in Hillsborough County, Florida, legal description of which is included and admitted into evidence as part of Exhibit 1. A maximum daily withdrawal of each of the wells is 591,700 gallons and the average daily withdrawal of each of the two wells is 295,850 gallons. The total average daily withdrawal for both wells combined is 591,700 gallons, or 94.43 percent of the water crop of the applicant as defined in Section 16J-2.11(3), F.A.C. 85 percent of the water used would be used for general residential purposes and 15 percent of the water used would be used for watering the grounds of the development. Letters of objection were received from Joseph and Roseamn Clements, C. C. and Ida M. Weisner, Sr.,. Miguel and Juanita Perez, Howard R. Lewis, Mr. and Mrs. Lonnie F. Lovell, Stephen J. KucIar (sic), and Carmen Vasquez. Reasons for the objections as stated in these letters was the effect the pending application would have upon the wells of the persons objecting. Mr. Szell testified that none of the matter set forth in Subsection 16J-2.11(2), (3) and (4), F.A.C. exists so as to require the denial of the permit. Mr. Earl Bessent testified that 55 acres of holding ponds were to be constructed on the property during the development and that the effect of these holding ponds would be to increase the input of waters from the 580 acres to the surface aquifer.
Recommendation It is recommended that Application No. 7500087, submitted by Trafalgar Developers of Florida, Inc., 111 Fountainbleau Boulevard, Miami, Florida, be granted for a maximum daily withdrawal of 1,183,400 gallons and an average daily withdrawal of 591,700 gallons, subject to the installation of flow meters on each of the wells and monthly readings thereof reported to the District quarterly. Entered this 4th day of August, 1975, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. T. Ahern, Esquire C. C. and Ida Weismer, Sr. Staff Attorney Route 7, Box 635-J Southwest Florida Water Tampa, Florida 33614 Management District Post Office Box 457 Miguel and Juanita Perez Brooksville, Florida 33501 Route 7, Box 635-K Tampa, Florida 33614 Trafalgar Developers of Florida, Inc. Mr. and Mrs. Lonnie Lovell 111 Fountainbleau Boulevard Route 5, Box 485-A Miami, Florida 33126 Tampa, Florida 33614 Howard R. Lewis Carmen Vasquez Route 5, box 485-AB Route 7, Box 635 Tampa, Florida 33614 Tampa, Florida 33615 Mr. Earl Bessent Bessent, Hammack & Ruckman, Inc. 3708 Swann Avenue Tampa, Florida 33609 Joseph and Roseann Clememts Route 7, Box 634-J Tampa, Florida 33614
Findings Of Fact The City of Cocoa Beach, Florida, was issued operating permit Number 5- 42-67, by the Florida State Board of Health on February 21, 1967, to operate a municipal swimming pool at the City recreation complex with a pool bathing capacity of 200 persons per hour and a pool bathing load of 800 persons. Chapters 10D-5 and 17-22 of the Florida Administrative Code establish health, safety, and sanitation standards for public swimming pools. The perimeter overflow gutter system for the pool in question is out of level and only partially operable. This condition has existed and has been known to exist by all concerned parties for many years prior to the dates in issue in this cause. The deep end of the pool has floated up approximately eight inches and the water level does not enter the overflow gutter at this point or at any other point except at the shallow end of the pool. An effectively operating overflow gutter system is necessary to permit effective removal of surface contamination such as body or suntan oil, debris, leaves, bugs, sputum, and the like which are not removed by the bottom drain system. All of these contaminants contain bacteria and since most people swim on the surface in this unfiltered water, the cleanliness at this level is important to insure proper sanitation. If the surface water is not filtered, there is little protection afforded by chemicals added. On April 9, 1981, Mr. Thomas Donigan, an Environmental Engineer for Brevard County, 1/ forwarded to the City of Cocoa Beach, a letter indicating that previously identified deficiencies in the gutter system had not been corrected, along with notification of other discrepancies in the pool complex which constituted violations of existing standards. When the City replied, admitting to the improper gutter system, but requesting reconsideration of the Petitioner's time limit stated for an affirmative proposal by the City, a more thorough inspection was conducted by Mr. Donigan and Mr. Loran Coffman, Regional Engineer for the Licensure and Certification Office of Petitioner, which revealed at least eleven substantial deficiencies, 2/ in addition to the gutter problem, all of which were brought to the attention of the City Manager by letter on June 8, 1981. This letter also advises the City to keep the pool closed to the public until these ancillary deficiencies could be corrected and the corrections confirmed. It also established a get-well date of January 1, 1982, for the gutter problem and advised of the right to an administrative hearing. Mr. Donigan continued his inspections; and in August, 1981, he reported to HRS that some of the deficiencies previously cited had been corrected but some had not, including the inlet fixture and the stain. For some reason, not further explained, notwithstanding the direction to keep the pool closed, the pool was opened for public use that season, and in July, 1981, the City voted to remove all pool charges for the rest of that season. However, in August, 1981, the City did submit plans for modification of the scum gutter, but they were not acceptable and were returned disapproved, to the City. Finally, on October 7, 1981, appropriate plans to correct the gutter problem were approved by Mr. Donigan and returned to the City for accomplishment. An inspection of the pool in April, 1982, by Mr. Coffman and Mr. Donigan revealed several previously identified discrepancies as still uncorrected and the gutter problem still existing. In May, 1982, another inspection by Mr. Coffman showing not only no improvement but apparently some deterioration in the pool operating condition. On July 27, 1982, the Director of the Office of Licensure and Certification, HRS, by letter to the City Manager informed the City of the results of that inspection and requesting, by August 16, 1982, a statement of the City's position and plans with regard to correcting the gutter system and the remaining problems. The City Manager responded by letter dated August 13, 1982, and indicated that all of the ancillary deficiencies except the stains had been "taken care of" and that to drain the pool to get the stains out would be too costly. The issue of the gutters was completely ignored and the City indicated that in its opinion, the pool was safe for public use. Notwithstanding Mr. Johnson's allegations that those problems except the stain had been "taken care of", a later inspection by Mr. Donigan, in the company of the City Recreation Director, showed that only one had been corrected. The stains on the pool walls cannot be definitely attributed to any particular cause at this time; however, one strong possibility is a long- standing low pH level in the pool that would cause a precipitation of iron from the pipes. In addition, the stain can prevent dirt in the pool from being observed and removed. It was argued that the stain might also hinder someone from being able to see a patron in distress in the pool. The importance of pH is that improper pH level reduces the effectiveness of the chlorine residual in the pool water, and the missing inlet covers in the pool bottom are hazardous in that a foot, hand, or finger may become stuck in them, thereby keeping the individual beneath the water. The depth markers being missing is also a hazard when it comes to people diving into the pool from the edge. Vacuum breakers on the hose bibbs at the pool deck area prevent contamination of the public water system by back siphonage of water from the pool or deck area. City witnesses, while admitting that the gutter system is incorrect as it exists, indicated that the prevailing wind flow from the out-of-the-water deep end of the pool to the properly working shallow end tended to mitigate the effect of the gutter deficiency on water quality. The City conducted daily tests of water quality at its own laboratory at the Water Treatment Plant. These continuing tests failed to reveal any improper or dangerous condition in the water, but, admittedly, this laboratory is not certified for tests of this kind; however, in addition to these tests, the pool manager monitored the chlorine and pH levels on a daily basis during the winter and every hour during the summer, and when chemical levels need adjusting, he adds as required. Further, the County Health Department checks water quality twice a week when the pool is operational. Several reports from the County of high coliform bacteria counts were subsequently determined to have been in error, and there has never been a high count from the City laboratory. In the eight years of operation by the current manager, the only illness complaints attributable to swimming in the pool were several ear infections, which are common at any swimming facility. Other rebuttal evidence related to the vacuum breakers which are in every outlet to the pool water. Most significant is the estimate which the City gives for repair of the gutter system and which the City is apparently unwilling to undertake. Repair costs would be approximately $60,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's permit to operate a public swimming pool be suspended for a period of one year, or until the identified deficiencies are corrected. RECOMMENDED this 21st day of March, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 21st day of March, 1983.
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Application No. 76-00360 is for a new consumptive water use involving one well. The application seeks withdrawal of 1.29 million gallons per day average daily withdrawal and 2.59 million gallons per day maximum daily withdrawal. The water will be withdrawn from the Floridan Aquifer for the irrigation of tomatoes. The amount of water sought to be consumptively used will exceed the water crop as defined, by the district because approximately 25 percent of the water will be discharged off site. The land which is the subject of this application is being leased by the applicant for the purpose of growing tomatoes. Applicant's lease terminates in September, 1978 with an option to renew. Except as otherwise set forth above, the applied for consumptive use will not violate any of the conditions set forth in Subsections 16J-2.11(2), (3) or (4), F.A.C. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: The applicant reduce runoff to 4.6 percent of the amount pumped by January 1, 1978. The district be allowed to install flowmeters and be allowed to go on the property to read these meters. The permit shall terminate on September 30, 1978, unless permitee seeks an extension. That the applicant give written notice of his intention to renew the lease if he so intends.
Recommendation It is hereby RECOMMENDED that Application No. 76-00360 be granted subject to the conditions set forth in paragraph 5 above. ENTERED this 26th day of May, 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 Ralph Williford Staff Attorney Glisson and Williford Farms, Inc. Southwest Florida Water Post Office Box 911 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
