Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY 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 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration at the hearing was whether the Respondent, Roger Harloff, should be issued a consumptive use permit to withdraw and use ground water from the wells on his property, and if so, in what amount and under what conditions.
Findings Of Fact Respondent, Roger Harloff, owns several farms in southeastern Manatee County, Florida which, taken together, make up an irregular 8,500 acre tract located approximately 2 1/2 miles north of the City of Sarasota's Verna Wellfield. Mr. Harloff grows vegetables on much of this tract, of which approximately 1,500 acres is devoted to tomatoes. This tomato crop is the prime crop produced by Mr. Harloff, and provides the raw material for the Harloff packing plant which is dependent upon the tomato crop in order to stay in business. Mr. Harloff also operates a plant nursery at which he produces many if not most of the seedling plants utilized in his vegetable growing operations. In order to be economically feasible and remain operative, Mr. Harloff must farm approximately 3,800 acres during the Spring growing season and approximately 3,000 acres during the Fall. These acres are made up of tomatoes and other vegetables. The packing plant and the plant nursery are dependent upon the farm operation and without adequate water, the farm operation cannot be successfully carried on. In September 1988, Mr. Harloff applied to the District for a consumptive use permit to withdraw water from twelve wells located on his property, requesting an annual average rate of 12,995,606 gpd, and a maximum daily rate of 47,520,000 gpd. The consumptive use permit application filed by Mr. Harloff was assigned District Number 204467.04. After evaluation of the application in conjunction with its needs and policies, the District issued a staff report and proposed agency action on the application which recommended issuance of the permit authorizing water to be drawn from the 12 wells at a rate approximating that requested in the application. Thereafter, the City of Sarasota, which operates the nearby Verna Wellfield, considering that the proposed withdrawal would have a substantial adverse impact on its wellfield operations, filed a Petition for Formal Administrative Hearing objecting to the issuance of the permit to Mr. Harloff. Though Mr. Harloff has owned much of the property which make up the 8,500 acre tract in question here, at the time of his application, he did not own, but had under contract, a substantial portion. He closed on the purchase of that remainder after he received notice of the District's intention to issue the permit in question but prior to the City's filing its Petition For Formal Hearing. The purchase price of the property in question was $9,000,000.00 which carries an interest payment on the financed portion of $52,000.00 per month. The wells pertinent to the issues in this proceeding are as follows: # Cons. Depth Cas. Lin. Diam. Cap. Loc. 1 1978 1185' 200' 220-490' 12" 2000 gpm SE 2. 1988 1320' 210' 210-480' 16" 3000 gpm SE 9. 1974 1130' 390' 16" 3000 gpm C 10. 1976 1232' 231' 283-400' 16" 3000 gpm NW 11. 1979 1120' 210' 260-480' 12" 2000 gpm NW 12. 1976 1180' 480' 12" 2000 gpm SW 3. 1989 1434' 460' 16" 3000 gpm SE 5. 1989 1374' 610' 16" 3000 gpm W 8. 1989 1292' 548' 16" 3000 gpm NW 13. 1989 1310' 635' 16" 2000 gpm NE Well No. 8 was used as the pump test well for the constant rate discharge test and Well No. 13 was the deep observation well for that test. Wells 1, 2, 9, 10, 11, and 12 have all been previously permitted by the District and No's 1, 2, 9 and 10 are currently permitted under two other permits, while 11 and 12 were permitted under a different permit. Wells No. 3, 5, 8 and 13 have been authorized for construction but not, as yet, to produce water. Wells 4, 6 and 7 have not yet been constructed. The intention is to drill them to a depth of 1,300 feet and case them to 600 feet. Each will have a pump capacity of 3,000 gpm. Number 4 will be in the southeast portion of the tract, number 6 in the central portion, and number 7 will be located just north of number 6. Wells 1, 2, 9, and 10 currently have a combined permitted maximum daily rate of 13,680,000 gallons under permits number 204467.03 for 1 and 2, and 204630 for 9 and 10. The former was issued on December 29, 1987 and will expire on December 29, 1993, and the latter, issued on October 7, 1981, will expire on that same day in 1991. The permit previously issued for wells 11 and 12 authorized withdrawal at a maximum daily rate of 2,160,000 gallons. That permit, number 204374, expired on September 9, 1986 and was not renewed. After the City filed its Petition challenging Mr. Harloff's proposed permit, Mr. Harloff, on June 26, 1989, filed an amended application to withdraw water at an average annual rate of 10.99 mgd and a maximum daily rate of 48.96 million gallons. This amended application refers to an additional proposed well, Number 13. The District, however, had previously approved wells 3 - 8 and 13, and pursuant to this authorization, wells 3, 5, 8, and 13 were built. Mr. Harloff submitted additional amendments to his application on August 7 and 9, 1989. The former requests a seasonal average daily rate of 25.34 mgd and a seasonal maximum daily rate of 32.79 mgd. The latter requests a seasonal average rate of 26.18 mgd, an annual average rate of 15.18 mgd, and a seasonal maximum rate of 31.56 mgd. In that regard, a seasonal rate is the same as an annual rate, (average or maximum) when applied to a growing season as opposed to a year. The additional amendments to the application were evaluated by District staff who, on August 18, 1989, issued a revised staff report and a proposal to issue to Mr. Harloff a consumptive use permit authorizing an average annual withdrawal of 11.1. mgd, an average seasonal withdrawal of 15.6 mgd, and a seasonal maximum withdrawal of 20.1 mgd. The proposed permit also contains terms and conditions which, the District contends, will, inter alia, permit Mr. Harloff to withdraw more water than he is currently authorized without additional adverse impact on the City's Verna Wellfield. It is to some of these terms and conditions that Mr. Harloff objects. Since the issuance of the revised staff report and intent to issue, the parties have negotiated on the various terms and conditions in question and have agreed to some and the amendment of others. Mr. Harloff has no objection to conditions number 1, 2, 3, 7 - 14, 23, 24, 26, 28 - 30, 32, and 34 & 35. The parties agree that other conditions, as indicated herein, should be amended as follows: Condition 19, on the third line, should be changed to read, " up to 20 inches tapering to 12 inches." Condition 22, on the second line, should be changed from "30 days" to "10 days". Condition 25, on the first line, should be changed from "within 60 days" to within 120 days". Condition 31, on the third line, starting with "following month" should be changed to "following months: January, April, July and October". Also, under Sampling Frequency, "Monthly" should be changed to "Quarterly". Condition 33, on the ninth line, insert the work "economically" before the word "feasible" in the phrase "specific operation and irrigation improvements are feasible". Mr. Harloff objects to conditions 4, 5, 15 - 17, 20 & 27. He does not object to the proposed new standards for new wells. Taken together, the parties then disagree only on the requirement for abandonment or refurbishment of existing wells and the quantities of water Mr. Harloff will be allowed to draw. The City supports the District's position on both issues. The City of Sarasota owns and operates a public water system to serve between 50 to 75 thousand people located in Sarasota County. The primary source of water for this system is the Verna Well field which is also owned by the City and which accounts for approximately 60 percent of the City's water needs. The City also operates a reverse osmosis, (R.O.) water desalinization facility, and has back-up wells at St. Armond Key and at the Bobby Jones Wellfield. The Verna Wellfield is located about 17 miles east of the Sarasota city limits on approximately 2,000 acres of land in northeastern Sarasota County. It consists of two tracts of land: Part "A", which is approximately 1/2 mile wide by 4 miles long; and Part "B", which is approximately 1 mile square located about 500 feet southeast of Part "A". The Verna Wellfield's permitted allocation is based on whether the R.O. facility is producing at capacity. If it is, the Verna daily allocation is 7 mgd, and if not, 9.5 mgd. The R.O. facility's capacity is 4.5 mgd and the backup wells have a capacity of 1.7 mgd. The wellfield contains 39 permitted production wells, 30 of which are in Part "A" and 9 of which are in Part "B." One of them, well 30, is currently inactive. The wellfield has been in operation as a part of the City's public water system since September 1966. When the Verna Wellfield was constructed in 1965-1966, its original design specified casing on most wells down to 140 feet with pump bowl settings at 125 feet. Each pump was to have a total dynamic head, (TDH) of 200 feet. Over the years, the City has decreased the TDH of the pumps at Verna from 200 feet to 175 feet. This has resulted in a reduction of the pumps' ability to produce water with sufficient pressure to carry it to the discharge point. This decline has been caused by an increase in withdrawal of water regionally, and not solely because of withdrawals from the Verna Well field. Verna is impacted by the use of water outside the boundaries of the wellfield. The City has an ongoing program calling for the refurbishment of 2 to 3 wells per year at the Verna Wellfield. It is the City's intent to convert the pumps to 200 feet TDH on all well refurbishments in the future. In August 1977, a program requiring permits for the consumptive use of water was implemented in both Sarasota and Manatee Counties. At that time, the Verna Wellfield had a production rate of 6.9 mgd annual average daily rate. On January 6, 1978, the City applied for a permit for Verna and on April 3, 1979, the District issued permit number 27804318 to allow the City to draw water from the Verna Wellfield. The City applied for a renewal of that permit in October 1983 and thereafter, in January 1985, the District authorized the continued withdrawal of water from Verna by the issuance of permit 204318 which, at Condition 18, placed limitations on the City's use of water from the wellfield. Specifically, the permit limited withdrawals from Verna to: ...6,000,000 gallons per day average and 7,000,000 gallons per day maximum, except during those times when ... [the R.O. process is reduced or to facilitate maintenance or repairs]. At such times, ... [withdrawals) may be increased to provide additional supplies not to exceed 8,000,000 gallons per day average annual and 9,500,000 gallons per day maximum. This condition clearly provides for additional supplies to be drawn to increase the Verna Well field production to a total of 8,000,000 and 9,500,000 mgd, respectively, not in addition to the regular permitted amount, by those quantities. The City's permit has been neither suspended nor revoked nor is any violation enforcement action currently under way. The current permit expires January 9, 1991. The water pumped from the Verna wells is held in a 1,000,000 gallon reservoir at the wellfield. This reservoir, which is topped at approximately 22 to 23 feet, electronically controls the pumping activity at the well field by turning on and shutting off pumps, in series, as the water level in the reservoir rises and falls. The water, when needed, is transmitted to another reservoir near the City's treatment plant in downtown Sarasota by gravity flow through a 30" diameter, 92,000 foot long pipe. The flow rate is approximately 5,000 gpm normally. When the treatment plant needs more water, a pump at the well field forces the flow at a rate of between 7,200 to 8,200 gpm, depending upon the level of water in the receiving reservoir. A flow of 8,200 gpm would draw 11.8 mgd from the wellfield. The operating capacity of the Verna Wellfield, in August 1988, was 17.9 mgd. Harloff's experts assert, and there is no concrete evidence to rebut it, that if all wells at Verna were pumping during a 24 hour period in May 1989, the reservoir could have been maintained at full level. However, though there is a manual override of the automatic reservoir/pump control system, it is unrealistic and unwise to expect full production on a 24 hour basis for any lengthy time period. Water under both Mr. Harloff's property and the Verna Well field is found at various levels known by different names. These include, in order of descent, the Surficial Aquifer, the Intermediate Aquifer, the Upper Floridan Aquifer, and the Lower Floridan Aquifer. The Surficial Aquifer extends from the surface down to between 20 and 60 feet below the surface. A 20 foot thick bed of clay separates the water in this aquifer from that in the aquifer immediately below it, the Intermediate Aquifer, which extends from approximately 80 feet down to approximately 420 feet below the surface. In the lower part of the Intermediate Aquifer, permeability decreases until a confining unit separating the bottom of the Intermediate Aquifer from the top of the Upper Floridan Aquifer is formed. There is such a confining unit between 420 and 500 feet. There is no well-defined confining unit between the Upper and Lower Floridan Aquifers. There is, however, a substantial difference in the transmissivity in each zone. "Transmissivity" is defined as the amount of water that will exist through a section of the aquifer that is the same width from the top to the bottom. The lower the transmissivity rate, the deeper the cone and the narrower the radius of effect. The higher the rate, the shallower the cone and the broader the radius. The Lower Floridan Aquifer has an extremely high transmissivity. Its top is found at a range of from 1,050 to 1,200 feet below the surface on Mr. Harloff's property. The water from the Upper Floridan Aquifer is of higher quality than that in the Lower. It is more readily usable for drinking than that in the Lower, but the Lower water is quite acceptable for agricultural purposes. What confining layer exists between the Upper and Lower Floridan Aquifers is made up of relatively impermeable anhydrides and gypsum. Because of this, there is little likelihood of the highly mineralized water from the Lower Floridan Aquifer rising into the better quality water in the Upper. If, therefore, water for agricultural purposes is drawn from the Lower Floridan Aquifer, with its high transmissivity and narrower cone radius, and if the wells utilized to procure this water are cased down to within the Lower aquifer, there is little chance of a negative impact on the better quality water, used for drinking by the City, within the Upper Floridan and Intermediate Aquifers. Mr. Hardin, an expert geologist and hydrogeologist testifying for Mr. Harloff, concluded, utilizing certain commonly accepted computer models, that Mr. Harloff's requested additional withdrawals would not have a significant effect on the Verna Wellfield's ability to produce water sufficient for the City's needs. This conclusion was based on 1989 seasonal use figures including an average rate of 21.95 mgd, a maximum rate of 27.04 mgd, and a maximum rate of 29 mgd under a "run time" calculation and the fact that during that period, the City was able to pump at least its permitted quantity from its wells at Verna. The City and the District do not accept this conclusion as reasonable, however, because, they claim, the withdrawal figures cited are not meter readouts but estimates based on the number of acres farmed and the number of pump operating hours during the period in question. The City's experts contend the data used by Hardin and Prochaska in their opinions is not that which other experts in the field would reasonably rely upon. They do not appear to be unrealistic, however, and, therefore, Mr. Hardin's opinion is accepted as but one factor to be considered. On the other hand, Mr. Anderson, also a Harloff expert hydrogeologist, claims the requested withdrawals would result in only an additional 1.7 foot drawdown in the Upper Floridan Aquifer underlying the Northeast corner of the Verna Well field. To be sure, this is only one small portion of the wellfield in issue. There has, however, been a continuing history of declining groundwater levels in this area over the past several years. After the 1975 drought, the City started to experience declining water levels at Verna which, because of the reduction in ability to produce water, required a lowering of the pump elements in some wells, and also caused the City to develop an R.O. facility in an effort to reduce dependence on well water. This drop in capability occurred again during the 1985 drought and this time the City modified the pump motors to shut off prior to cavitation and initiated a schedule of operating times for wells, so that water is drawn from different and geographically separated areas in a sequence designed to allow periodic regeneration of an area's supply. Nevertheless, water supply remains a concern at Verna, and the problems previously experienced continue to occur during periods of drought. In May 1989, the Verna Wellfield was periodically "unable" to meet it's short term peak demands at times even though all operating wells were pumping. This means that at the times in question, more water was being drawn from the Verna reservoir than could be replaced by pumping activities. It does not mean that the reservoir ran dry and water could not be furnished to the treatment plant. However, this condition is serious and indicative of a more serious shortage in the future unless appropriate safeguards are instituted. Mr. Balleau, the City's expert in hydrology and hydrogeology, and the District's experts all believe the Verna Wellfield is in trouble. It is operating well beyond its design range and the imposition of additional demands on it would seriously and adversely affect its ability to produce water. This position is supported by the facts and found to be accurate. There appear to be several options open to the City to contend with the Verna problem potential. These include: drill deeper wells at Verna to tap the Lower Floridan Aquifer. (This will produce the lower quality water found there and require additional treatment facilities. construct a linear wellfield along the pipeline from Verna to the treatment facility. (This will require additional permitting to draw the water, high construction and operating costs, and still result in low quality water requiring treatment. redevelop the downtown wells currently supplying the R.O. facility. (This will require satisfaction of regulatory issues, adversely impact on the users of the upper aquifers, possibly result in poor water quality and in contamination from nearby landfills.) develop a new well field southeast of Verna. (This will experience regulatory issues and high construction costs, with an unknown water quality result.) buy water from Manatee County. (This is expensive, may result in transmission and compatibility problems, and would be only a short term solution. lower pump assemblies; replace existing pumps and modify the pump circuits. (These are all unreliable, short term solutions of minimal benefit.) Mr. Harloff and the City/District disagree on the appropriate amount of water needed for the successful growing of the crops produced by his operations. Both agree, however, that the heaviest demands for water come in the spring growing season including April and May. Tomatoes require the most water. Peppers require nearly as much. This is because the short root systems require a higher water table in the soil to supply needed moisture. In its analysis of Mr. Harloff's application, the District, referring to tables developed for the purpose of allocation and relating to Harloff's watering history during the period from August 15, 1988 to June 7, 1989, subtracted the fall season recorded application of 20.7 acre-inches from the total 10 month figure of 50.92 acre-inches and concluded he would need 30.22 acre-inches for peppers during the spring, 1989 season. Unless shown to be totally unreasonable, however, (not the case here), the applicant's water need figures should be accepted. Mr. Harloff's operation constitutes an important part of Manatee County's agricultural economy, and agriculture utilizes 68.9 percent of the land in the county. Agricultural products sold in Manatee County in 1987 were valued at $145,655,000.00, which ranked Manatee County third among all Florida counties in vegetable production. Agriculture is the fourth largest employer in Manatee County, employing an average of 4,692 people per month. Through his farm operation alone, Harloff employes as many as 1,050 people, with 200 employed on a full-time basis. Experts estimate that the loss of the Harloff operation would cause a reduction of between 16 and 18 million dollars in agricultural sales in the county with an additional loss in jobs and income to his suppliers. This estimate is not at all unreasonable. Florida produces approximately 95 percent of all tomatoes grown in this country for the fresh tomato market during the winter growing season. Tomatoes are the single largest vegetable crop grown in the state and accounted for 39.7 percent of the total value of vegetables produced in Florida during the 1987-1988 growing season. Mr. Harloff produced 4.8 percent of the total shipment of tomatoes from this state during that period. Water, primarily through irrigation, is an indispensable portion of the farming operation for this crop. Mr. Harloff currently irrigates the majority of his non-citrus crops by use of a "semi-closed ditch irrigation system", as opposed to a "drip system." The drip system is considerably more efficient than the semi-closed system having an efficiency rating, (amount of water actually used by the plants) of between 80 to 90 percent, as opposed to 40 to 60 percent for the other. While Mr. Harloff could reduce his water needs considerably and achieve substantial savings on pump fuel by conversion to a drip system for all or a part of his crops, such an undertaking would be quite costly. One of the conditions proposed by the District for the approval of Harloff's permit, as amended, is the refurbishment of several of the existing wells utilized by Mr. Harloff to make them more efficient and to promote the withdrawal of water from the Lower Floridan Aquifer, in which there appears to be adequate water and from which the Verna Well field does not draw. Currently, Mr. Harloff has seven wells which do not meet the standards of this proposed condition. They are not drilled to 1,300 feet below mean sea level and are not cased to 600 feet. To bring these wells into compliance, they would have to be drilled to the 1,300 foot level, or to a level which has a specific capacity of 400 gpm, and the casings in each would have to be extended to 600 feet. Extending the casings would be a complicated procedure and Harloff's experts in the area cannot guarantee the procedure would successfully achieve the desired end. Assuming the retrofit was successful, the cost of the entire process would be approximately $15,000.00 to $16,000.00 per well. In addition, the process would, perforce, require reducing the diameter of the well from 10 to 8 inches, thereby necessitating increasing the pump capacity to produce sufficient water. The cost of this is substantial with an appropriate new pump costing somewhere between $10,000.00 and $15,000.00 each. Consequently, the anticipated cost of bringing the existing wells up to condition standards would be between $25,000.00 to $31,000.00 per well, while the cost of constructing a new well is between $40,000.00 and $50,000.00 per well. Mr. Harloff feels it would be more prudent for him to replace the existing wells rather than to retrofit them. This may be correct. Harloff experts also claim that extending the casings on the existing wells down to 600 feet would not provide a significant benefit to the aquifer nor cause any significant reduction in drawdown impact at Verna. The District and City experts disagree and, taken on balance, caution and the interests of the public indicate that a conservative approach is more appropriate. While Mr. Harloff proposes to convert the areas served by wells 1, 9, 11, and 12 to the growing of citrus which requires much less water than tomatoes, this would not be sufficient mitigation to offset the need for some modification if large amounts of water will still be drawn. The entire area under the District's jurisdiction has been experiencing a water shortage due to a lack of rainfall. As a result, in June 1989, the District adopted a resolution identifying an area, including the area in question here, as a "water use caution area." This was done because the Floridan Aquifer has been subjected to large seasonable drawdowns of the potientiometric surface, the level to which water in a confined aquifer can rise in a well which penetrates that acquifer. This drawdown is directly related to increased water use in the area, much of which is for agricultural purposes. As a result of the District's action, special conditions on well construction for consumptive use applicants have been imposed on a permit by permit basis to insure, as much as possible, that the applicant uses the lowest quality water appropriate for his intended purpose. These conditions are not unreasonable. While accepting the District's and City's conclusion that his wells, if permitted, would have some impact on the Verna Wellfield, Mr. Harloff does not concede that the impact is significant. Specifically, the difference in impact resulting from an increase from his currently permitted use of 13.68 mgd seasonal maximum and his requested use of 31.56 mgd seasonal maximum for wells 1, 2, 9, and 10 would be a maximum increased drawdown of 1.1 feet at the Intermediate aquifer and 1.8 feet at the Upper Floridan Aquifer. Both figures relate to that portion of the wellfield found in the northeast corner of Part A. If the anticipated usage for crops predicted by Mr. Harloff's experts for the spring of 1989 is accurate, the drawdown would be 0.2 feet for the intermediate aquifer and 0.4 feet for the Upper Floridan Aquifer measured at the northeast corner of Part B of the Verna We1lfield. Harloff's experts contend that additional impacts for the spring of 1989 included, the increased usage will not have a significant effect on Verna's ability to produce its permitted daily maximum withdrawal of 9.5 mgd. While this is an educated speculation, it should be noted that during May 1989, the Verna field was able to produce up to 8.3 mgd without using all wells during any 24 hour period. This does not consider, however, the problems encountered by the City as indicated by the wellfield personnel, and the fact that some of the City wells are not pumping water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Roger Harloff be issued a consumptive use permit, No. 204467.04, as modified, to reflect authorization to draw 15.18 mgd annual average, not to exceed 31.56 mgd seasonal maximum, conditioned upon compliance with the conditions found in the conditions portion of the permit, as modified to conform to the quantities as stated herein, and to include those requirements as to acre-inch and crop-acre limitations, well usage and abandonment schedules, well modification standards, and record keeping, as are contained therein. RECOMMENDED this 5th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-0574 The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: City of Sarasota, joined by the District 1 & 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 8-12. Accepted and incorporated herein. 13. Accepted and incorporated herein. 14-22. Accepted and incorporated herein. 23-25. Accepted and incorporated herein. 26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29-33. Accepted and incorporated herein. Not a Finding of Fact but a statement of party position. & 36. Accepted. 37. & 38. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on opponent's satisfaction of its burden of proof. 42-44. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misstatement of fact. Water service was never interrupted. The deficiency was in the City's inability to keep its wellfield reservoir filled. 47-54. Accepted and incorporated herein. Accepted and incorporated herein. Rejected for the reasons outlined in 41. 57-62. Accepted and incorporated herein. 63. Rejected for the reasons outlined in 41. 64-66. Accepted and incorporated herein. Rejected for the reasons outlined in 41. Rejected. & 70. Accepted and incorporated herein. 71. & 72. Accepted and incorporated herein. 73. Accepted and incorporated herein. 74 & 75. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a statement of party position. Rejected. Accepted. Irrelevant. 81-84. Rejected. 85. & 86. Accepted and incorporated herein. 87 & 88. Accepted and incorporated herein. 89. Accepted and incorporated herein. 90 & 91. Accepted and incorporated herein. 92. & 93. Accepted and incorporated herein. FOR THE RESPONDENT: Roger Harloff 1-9. Accepted and incorporated herein. 10-13. Accepted and incorporated herein. 14 & 15. Accepted and incorporated herein. 16-25. Accepted and incorporated herein. 26-28. Accepted and incorporated herein. 29 & 30. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not proven. 35 & 36. Accepted and incorporated herein. 37 & 38. Accepted and incorporated herein. 39-41. Accepted and incorporated herein. 42 & 43. Accepted and incorporated herein. 44. Accepted. 45 & 46. Accepted and incorporated herein. 47 & 48. Accepted and incorporated herein. 49. Accepted. 50 & 51. Accepted and incorporated herein. Accepted. Accepted. Accepted. & 56. Accepted and incorporated herein. 57. Accepted. 58-60. Accepted and incorporated herein. 61 & 62. Accepted and incorporated herein. Rejected as unproven. Accepted. Accepted and incorporated herein. Accepted. 67-68. Accepted. Not a Finding of Fact but an interpretation of party po Accepted. Rejected. 72 & 73. Accepted. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte, Gilbert and Gramovot, P.A. 705 East Kennedy- Blvd. Tampa, Florida 33602 Edward B. Helvenston, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application number 07256-F be APPROVED subject to the special conditions set forth above. DONE AND ORDERED this 15th day of July 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July 1987.
The Issue The issue in this case is whether the Southwest Florida Water Management District (the District) should grant the application of the Misty Creek Country Club, Inc. (the Club), to modify MSSW Permit No. 400037.
Findings Of Fact Background Petitioners are owners of property adjacent to Lake No. 7 of the Misty Creek Country Club in a development called The Preserves at Misty Creek-- specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A (Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots 119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen Higgins), and lot 121 (William and June Spence). Respondent, the Misty Creek Country Club (the Club), operates a golf course and country club located at The Preserves at Misty Creek under a 99-year lease with Gator Creek Lands, the developer of The Preserves at Misty Creek. Existing System Design and Application for Permit Modification In 1985, Respondent Southwest Florida Water Management District, issued a surface water management permit for development of a 730-acre residential development and golf course. The District subsequently issued to the Club operation phase authorization for the surface water management system associated with the golf course portion of the development in March of 1992. Under the original permit, Lake No. 7 was part of the overall stormwater management system for the golf course. The lake is approximately seven and half to eight acres in size and is part of a total drainage basin of approximately twenty-eight acres. As originally designed, Lake No. 7 is a detention with filtration system. An underdrain in the side of the bank provides water quality treatment, filtering out oils and greases, fertilizers and other contaminants. A control elevation of 31.02 was established for Lake No. 7 through construction of a weir. Between elevation 31.00 and 31.02, water discharges through the underdrain system providing water quality treatment. Above elevation 31.02, water flows over the control structure into Lake No. 6, and ultimately discharges to Cow Pen Slough, which is Class III waters of the state. The Club presently has a water use permit from the District which allows withdrawal of groundwater for irrigation of the golf course. Groundwater is stored in Lake No. 7 prior to use for irrigation when needed to augment water in the lake. Special Condition Number 2 of the water use permit required the Club to investigate the feasibility of using reclaimed or reuse water in lieu of groundwater for irrigation purposes at the golf course. As a result of the investigation required by Special Condition Number 2 of the water use permit, the Club filed an application with the District to modify its surface water management permit to allow for the introduction of reuse water into Lake No. 7. Under that application, there would have been no significant modifications to the stormwater management system. Reuse water would have replaced groundwater as a source for augmenting water in the lake when needed for irrigation. An eight-inch service line would convey the reuse water to Lake 7, and a float valve would control the introduction of reuse water into Lake No. 7. When water levels in the lake fell below elevation 30.5', the float valve would open the effluent line to allow introduction of reuse water into the lake; when the water elevation in the lake reached 31.0', the float valve would shut off the flow of water. There would be gate valves on either side of the structure that could be manually closed, if necessary, to stop the flow of reuse water into the lake if the float valve malfunctioned. Club personnel would have access to the gate valves and could manually stop the flow of reuse water into the lake if necessary. On August 9, 1995, just days prior to the final hearing in this matter, the Club proposed to modify its application to make certain structural changes in the design of the surface water management system. Specifically, the Club proposed to plug the window in the weir, raise the elevation of the weir or control structure to elevation 33.6, raise the elevation of the berm along the north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the underdrain. The purpose of the proposed modifications to the design of the system was to assure that no discharge from Lake No. 7 would occur up to and including the 100-year storm event. A 100-year storm event is equal to 10 inches of rainfall in a 24-hour period. Source and Quality of Reuse Water The Club also entered into an agreement with Sarasota County to accept reuse water from the county's new Bee Ridge wastewater treatment facility. That agreement specifies the terms under which the Club will accept reuse water from the County. The County's Bee Ridge facility is presently under construction and is not yet operating. As permitted by the Department of Environmental Protection, the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment system which is a licensed process to provide advanced waste treatment. The construction permit establishes effluent limits for the facility that are comparable to a level of treatment known as advanced secondary treatment, but the County Commission for Sarasota County has instructed the County staff to operate the Bee Ridge facility as an advanced waste treatment plant. Advanced waste treatment is defined by the quality of the effluent produced. For advanced waste treatment, the effluent may not exceed 5 milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids (TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total phosphorus. It also requires high level disinfection. Advanced secondary treatment requires the same level of treatment for TSS but the limit for nitrates is 10 milligrams/Liter. High level disinfection is also required for advanced secondary treatment. In Florida, reuse systems require a minimum of advanced secondary treatment. High level disinfection is the level of treatment that generally is accepted as being a reasonable level of treatment. The Bee Ridge permit issued to Sarasota County identifies the Club as one of the recipients of reuse water for irrigation. Condition Number 21 of that permit provides that the use of golf course ponds to store reuse water is not authorized under the County's permit until issuance of a separate permit or modification of the County's permit. Although the District did not require Misty Creek to submit any information about the modification of the County's permit, there was no basis for assuming that the County permit could not be modified. To the contrary, the permit provides that authorization may be obtained by permit modification. Under the late modification to the Club's application, the reuse water transmission line and float valve system, with backup manual gate valve system, is unchanged. So are the water elevations at which the float valve system will automatically introduce reuse water into Lake 7 and shut off. Sarasota County already has constructed the water transmission system that would deliver reuse water to the Club. At the request of the District, the Club provided copies of the drawings of the float valve structure as permitted by the Department of Environmental Protection. The District did not require certified drawings of that structure. But the District will require the Club to provide as-built drawings following completion of construction prior to the introduction of reuse water into Lake No. 7. Property Ownership Each of the Petitioners owns a residential lot adjacent to Lake No. 7. At the time of the Petitioners' purchase of the individual residential lots, the Club leased certain property immediately west of Lake No. 7 from the developer of The Preserve at Misty Creek. The leased premises included a piece of land extending into the lake known as the 19th green. As a result of negotiations between the Club and the developer, it was determined that the 19th green would be removed and the land between the approximate top of bank of Lake No. 7 and the private residential lots would be released from the Club's lease. The developer subsequently conveyed the property that had been released from the Club's lease to the individual lot owners (the "A" parcels listed in Finding 1). At the time of the conveyance of the additional parcels, the attorney for the developer prepared deeds for each individual parcel with a metes and bounds description off the rear of the residential lots to which they were being added. While the Club's application for modification of its surface water management permit was being processed by the District, counsel for Petitioners provided the District with copies of the individual deeds and questioned whether the Club had ownership or control of the land which was the subject of the application sufficient to meet the District's permitting requirements. In response to a request for information regarding the ownership of the property that was the subject of the application, the Club submitted to the District a topographical survey prepared by Mr. Steven Burkholder, a registered professional land surveyor with AM Engineering. The topographical survey depicted: the elevation of the water in the Lake No. 7 on the day that the survey was conducted, labeled "approximate water's edge"; the elevation of the "top of bank"; and the easternmost line of private ownership by Petitioners. Mr. Burkholder determined the line of private property ownership by reproducing a boundary survey attached to the individual deeds conveying the additional parcels to the Petitioners. He testified that he was confident that the topographical survey he prepared accurately represented the most easterly boundary of the Petitioners' ownership. The elevation of the line of private ownership as depicted on the survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to 35.2. The elevation of the line labeled "top of bank" ranges from a high of 35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be controlled by the elevation of the modified control structure which is proposed to be set at elevation 33.6. After modification of the surface water management system to retain the 100-year storm event, at no time would water levels in the lake rise above the existing elevation of the "top of bank." The Petitioners testified that they believed that they owned to the water's edge or edge of the lake, but Mr. Burkholder testified that a property boundary could not be determined based on an elevation depicting the water's edge because that line would change as the level of the water rose and fell. The Petitioners also presented evidence that the developer's attorney made representations to them that their ownership extended to the "approximate high water line." But there appears to be no such thing as an "approximate high water line" in surveying terms. Where the boundary of a lake is depicted on a survey it generally is depicted from top of bank to top of bank. In any event, the legal descriptions of the parcels conveyed to the Petitioners were not based on a reference to either a water line or the water's edge or the lake at all. Instead, the legal descriptions were based solely on a metes and bounds description off the rear of the residential lots. Notwithstanding some contrary evidence, if the Petitioners owned to the water's edge, such ownership would require the Petitioners to consent to or join in the amended application for the modification of the Club's surface water management permit. Information regarding the ownership or control and the legal availability of the receiving water system is required as part of the contents of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code. The amended application requires the ability to "spread" Lake 7 in the direction of the Petitioners' property. If the Petitioners own the property on which the Club intends to "spread" Lake 7 in order to make the amended application work, the Petitioners must consent or join. The issue of the legal ownership and control of the Petitioners and the Club currently is in litigation in state circuit court. If the state circuit court determines that the easterly boundary of the "A" parcels lies to the east of the "top of bank," consideration would have to be given to modifying any permit issued to the Club to insure that the designed "spread" of Lake 7 in a storm event up to and including a 100-year storm event does not encroach on the Petitioners' property. District Permit Requirements The District has never before processed an application for a surface water management permit allowing commingling of storm water and reuse water. The District applied Chapter 40D-4, Florida Administrative Code, in reviewing the Club's permit application. There are no specific provisions in Rule 40D-4 or the District's Basis of Review for Surface Water Management Permit Applications that address the commingling of stormwater and reuse water; on the other hand, no rules of the District prohibit the introduction of other types of water into a stormwater treatment pond so long as the requirements of Rule 40D-4 are met. The District has the authority to allow stormwater and reuse water to be commingled. Section 40D-4.301, Florida Administrative Code, contains the conditions for issuance of a surface water management permit. Permitting Criteria In order to obtain a surface water management permit to commingle stormwater and reuse water in Lake 7, the Club must provide reasonable assurances that the proposed modifications to its existing system will provide adequate flood control and drainage; not cause adverse water quality and quantity impacts on receiving waters and adjacent lands; not result in a violation of surface water quality standards; not cause adverse impacts on surface and groundwater levels and flows; not diminish the capability of the lake to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code; not cause adverse environmental impacts to wetlands, fish and wildlife or other natural resources; be effectively operated and maintained; not adversely affect public health and safety; be consistent with other public agency's requirements; not otherwise be harmful to water resources of the District; and not be against public policy. No surface or groundwater levels or flows have been set for this area of the District, so that permit criterion is not applicable to the Club's application. The Club's application will not impact wetlands or fish and wildlife associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are no wetlands regulated by the District in the project site. The Club has submitted to the District an operation and maintenance plan for the modified surface water management system. The operation and maintenance plan is in compliance with the District's permitting criteria contained in Rule 40D-4.301(1)(g). The District's regulation with respect to the requirement that a project not adversely affect the public health and safety is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The permitting criterion that a project must be consistent with the requirements of other public agencies was met by inclusion in the permit of Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition No. 3, which require that the surface water management permit be modified if necessary to comply with modifications imposed by other public agencies. The District's regulation with respect to the requirement that a project not otherwise be harmful to the water resources within the District is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The District's regulation with respect to the requirement that a project may not be against public policy is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with that criterion. The project will not have an adverse impact on water quality or quantity in receiving waters or adjacent lands. Under the District's regulations, the project would not be permittable if it caused flooding on property owned by other persons. Two concerns regarding off-site flooding were raised by Petitioners: first, the potential for flooding of the Petitioners' property; and, second, the potential for flooding of secondary systems connecting to Lake No. 7 such as private roads in the development. The project would violate the requirements of Section 40D-4.301(1)(a), Florida Administrative Code, which requires that a proposed project provide adequate flood protection and drainage, if raising the weir and berm elevation to 33.6 would cause the level of water in Lake No. 7 to move laterally up the bank and encroach on property owned by Petitioners. However, the Club has given reasonable assurances that the Petitioners own only to the "top of bank" and that raising the weir elevation to 33.6 would not cause water levels to rise above the "top of bank" of the lake. If it is determined in pending state circuit court proceedings that the Petitioners own beyond the "top of bank," any permit for the Club's project might have to be modified to avoid flooding the Petitioners' property. With respect to potential flooding of secondary systems, such as adjacent roadways, raising the elevation of water in Lake No. 7 would decrease the capacity of the storm sewers draining into the Lake. However, the proposed modifications would not increase the area of impervious surface in the drainage basin or decrease the size of the lake, and water levels in the roadways probably would not rise much higher than under present circumstances. The existing storm sewer system is only designed for a 10-year storm event, so the supplemental effect on roadway flooding from retaining a 100-year storm event in Lake No. 7 probably would be negligible. The Club gave reasonable assurances that any increase in water levels on the roadways from the proposed modifications would not be considered a significant adverse effect because it still would not affect public access. Sarasota County's land development regulations allow flooding in streets of up to 12 inches for a 100-year storm event, nine inches for a 25-year storm event, and six inches for a 10-year storm event. No portion of the proposed project area is within the 100-year floodplain. The project will not have an adverse effect on water quantity attenuation or cause flooding of the Petitioners' property or secondary systems, such as adjacent roadways. Petitioners have protested the effect that this project will have on water quality within Lake No. 7, itself. Surface water quality standards do not apply within a stormwater pond. Stormwater ponds are essentially pollution sinks intended to receive polluted runoff. Where there is no discharge from a pond, water quality treatment is irrelevant. Lake 7 is not a "water resource within the District" pursuant to Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j) limits the issues to be considered by the District to downstream water quality, water quantity, floodplain impacts, and wetlands impacts. The commingling of wastewater effluent treated to a level of advanced secondary or advanced waste treatment (reuse water) would improve water quality within a stormwater treatment pond at least 90 to 95 percent of the time. Stormwater is very low quality compared to reuse water. In most respects, reuse water also will be better quality than the well water presently being used to augment the pond. It is expected to be better quality than unimpacted water in the receiving waterbody with respect to nitrogen content and only slightly worse with respect to phosphorus content. The addition of reuse water should not promote more algal growth; rather, it should reduce the likelihood of algal growth. It also should not increase the incidences of fish kills in Lake 7. Nor should it alter the nutrient concentrations in Lake 7 so as to result in an imbalance of the natural population of aquatic flora and fauna. In the draft permit originally proposed to be issued to the Club, permit conditions required that water quality be monitored at the point of discharge to waters of the state. This requirement was eliminated from the revised permit as the District determined that it was not necessary in light of the modification of the system to retain the 100-year storm event. The subject design does not account for recovery of the water quality treatment volume within a specified period of time. However, there is no such requirement in District rules when a pond entirely retains the 100-year storm event, as is the case with this project. Even if there were a discharge from the surface water management system in a storm event up to and including a 100-year storm event, the Club gave reasonable assurances that water quality standards in the receiving waterbody would not be violated because of the effects of dilution. This project will not cause discharges which result in any violations of applicable state water quality standards for surface waters of the state. Based on a number of factors, including the peak rate factor, the curve number and the seasonal high water elevation, the water level in Lake 7 would reach an elevation of 33.57 if a 100-year storm event occurs. This results in the retention of the 100-year storm in Lake 7. The District only considers the 100-year storm event, by itself. It does not consider other rainfall events before or after it. However, the District does presume that ponds are at their seasonal high water level when the 100-year storm event occurs and that the ground is saturated. With respect to the seasonal high water level, there was substantial conflicting testimony. The Club's consultant used a seasonal high water level of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical engineering report prepared by Ardaman & Associates. A seasonal high water elevation of 31.0' was also used in the original permit application in 1985. In concluding that the seasonal high water level should be 31.0, the Ardaman report relied on several assumptions, including plugging of the underdrain and overflow weir and no discharges into or pumping out of the lake. These assumptions were made to establish an historical water level. The Petitioners' consultant disputed the determination in the Ardaman report that the seasonal high for Lake No. 7 was 31 on the grounds that the report indicated groundwater levels of 32.8 on three sides of the lake. He also felt that water levels would rise in the lake over time as a result of it being, allegedly, a closed system. While he did not have an opinion as to what the appropriate seasonal high should be, he felt it would be higher than 31 but lower than 32.8. However, he did no modeling with respect to calculating a seasonal high water level and would normally rely on a geotechnical engineer, such as Ardaman & Associates, to calculate seasonal high water levels. The District generally does not receive information as extensive and detailed as that included in the Ardaman report when it reviews permit applications. Among other things, the Ardaman report indicates a gradient across Lake No. 7 which makes the determination of the seasonal high for the lake difficult. The groundwater flow gradient results from the fact that the elevation of Lake No. 6 is approximately three feet lower than the elevation in Lake No. 7. The elevation determined by Ardaman may well be conservative in that the seasonal high of 31 is above the midpoint of the gradient. Although Lake 7 will be designed as an essentially closed system, it will have inflow from rainfall, surface runoff, introduction of reuse water and groundwater inflow, and outflows by way of evapotranspiration, withdrawal for irrigation purposes, and groundwater outflows. To alleviate any concerns about the validity of the seasonal high, it would be reasonable to include a permit condition requiring the Club to monitor the water level in Lake 7 on a daily basis, using staff gauges, after modification of the control structure. If such monitoring indicated that the seasonal high water level exceeds 31.0, the District could consider options to address that situation, including reducing the level at which reuse water is introduced into the lake or requiring water quality monitoring at the point of discharge to receiving waters. Groundwater quality is regulated by the Department of Environmental Protection, not by the District. The DEP permit issued to Sarasota County for disposal of reuse water at the Club golf course requires the installation of two groundwater monitoring wells, one in fairly close proximity to Lake No. 7. The Overlooked Pond There is a small retention pond northwest of Lake 7, near lot 113. Neither the Club nor the District considered the effect of the Club's late modification of its application on the retention pond northwest of Lake 7 and adjacent properties. Lake 7 and the retention pond to its northwest are connected by an equalizer pipe. As a result, water levels in the pond will be affected by water levels in Lake 7. There was no evidence as to the elevations of the banks of the retention pond. There was no evidence as to whether the modifications to the Club's application will result in flooding of properties adjacent to the pond. There was no evidence that the Club owns or controls the retention pond or the properties adjacent to it that might be affected by flooding that might result from the modifications to the Club's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the Club's amended application. RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. 1.-2. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease. Accepted and incorporated. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease and from which the western extent of the Club's leasehold interests in Lake 7 can be determined. Accepted and incorporated. But the topographic survey, together with other evidence, does show the eastern extent of the Petitioners' property in relation to the "top of bank" of Lake 7 and the western extent of the Club's leasehold interests in Lake 7. Rejected as contrary to the greater weight of the evidence that uses must be "specifically authorized" in that the lease authorizes the use of the premises for a "golf course," which is presumed to include uses inherent to the operation of a golf course that may not be further specified in the lease, such as drainage facilities, like Lake 7, and facilities for irrigation of the golf course. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that the Club does not pay for the maintenance of Lake 7, at least as between the Club and its lessor, which is the subject of the pertinent lease provision. (There was evidence as to a dispute between the Club and the Petitioners, or at least some of them, as to who is responsible for maintenance of land in the vicinity of the western extent of Lake 7 and the eastern extent of the Petitioners' property. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence to the extent that there are "A" parcels between lots 115 through 120 and Lake 7. Otherwise, accepted and incorporated. Accepted and incorporated. Not clear whether all of the activities listed in the second sentence are done in the entire area up to the water's edge but, otherwise, accepted and incorporated. Accepted, but subordinate to facts contrary to those found, and unnecessary. Accepted; subordinate to facts found. Rejected. The intent of the parties is not clear and is the subject of litigation in state circuit court. 17.-18. Accepted that some probably used the words "to the water's edge"; others may have said "to the lake" or "to the approximate high water line." Regardless of what they said, the legal consequences are being litigated in state circuit court. Subordinate to facts contrary to those found, and unnecessary. 19.-20. Accepted and incorporated to the extent not subordinate or unnecessary.. Last sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. The evidence was sufficient to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on the Alberti boundary survey that was attached to the individual deeds to all of the "A" parcels, in relation to the "top of bank" of Lake 7 and other topographical features depicted on Exhibit M-16. The 0.679 acre total for the "A" parcels was merely transcribed from the Alberti boundary survey (probably incorrectly, as the boundary survey seems to indicate the acreage to be 0.674, plus or minus.) Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, it will spread more than before the modifications, up to a maximum spread of approximately ten feet. Rejected as contrary to the greater weight of the evidence. The Club gave reasonable assurances that the spread would be contained within its leasehold interest. However, consideration would have to be given to modifying the permit if the state circuit court determines in the pending litigation that the easterly boundary of the "A" parcels lies to the east of the "top of bank." Accepted and incorporated to the extent not conclusion of law. Accepted. Self-evident and unnecessary. Accepted and incorporated. Accepted, but subordinate, and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. It does not prohibit it; it just does not authorize it. It provides that authorization may be obtained by permit modification. Accepted and incorporated to the extent not subordinate or unnecessary. 32.-36. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) 37. Rejected as contrary to the greater weight of the evidence that discharges will be "likely." (Accepted and incorporated that no discharges are expected as a result of storm events up to and including a 100-year storm event unless preceding conditions predispose the system to discharge during a 100-year storm event.) 38.-39. Accepted but subordinate and unnecessary. (As for 39., very little construction will be required for the proposed project.) Rejected as contrary to the greater weight of the evidence. First, Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a half inch will be added. Second, it is not clear that the Ardaman report established an "artificially low seasonal high water level." (There is a hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman report assumed no flow into or out of Lake 7; it also assumed no pumpage into or out of the lake.) Rejected as contrary to the greater weight of the evidence that it is based "solely" on that assumption. Accepted and incorporated that it is based on that and on other assumptions. Accepted and incorporated. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) Rejected as not supported by evidence. Rejected as contrary to the greater weight of the evidence to the extent that the impact is obvious--the water level in the pond will be approximately equal to the water level in Lake 7. Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, so will the water level in the pond. 47.-48. Accepted and incorporated. 49.-50. Accepted but subordinate and unnecessary. 51.-52. Accepted and incorporated. Respondents' Proposed Findings of Fact. 1.-7. Accepted and incorporated. 8. Rejected as contrary to the greater weight of the evidence in that there was more to the application than just substitution of reuse for well water. 9.-10. Accepted and incorporated. 11. Accepted and incorporated to the extent not subordinate or unnecessary. 12.-22. Accepted and incorporated. Rejected as not proven. (The two District witnesses disagreed.) Even if true, subordinate to facts contrary to those found. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. 28.-29. Accepted; subordinate to facts found, and in part conclusion of law. 30. Accepted. First sentence, incorporated; second sentence, subordinate to facts found, and in part conclusion of law. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted but subordinate to facts contrary to those found. 39.-40. Accepted and incorporated to the extent not subordinate or unnecessary. 41.-43. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. Last sentence, accepted and incorporated to the extent not conclusion of law; rest, accepted but subordinate to facts contrary to those found, and in part conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted, but subordinate, and unnecessary. Accepted and incorporated. First sentence, accepted but subordinate to facts contrary to those found; second sentence, accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. 51.-52. Accepted and incorporated. 53.-55. Accepted, but subordinate to facts found, and unnecessary. 56. Accepted and incorporated. 57.-62. Accepted and incorporated to the extent not subordinate or unnecessary. 63. Accepted and incorporated to the extent not conclusion of law. COPIES FURNISHED: Patricia A. Petruff, Esquire D. Robert Hoyle, Esquire Dye & Scott, P.A. 1111 Third Avenue West Bradenton, Flroida 34206 Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith, Schuser & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Mark F. Lapp, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston,Esq. General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether to approve an application by Respondent, I.M. Collier, J.V. (Collier), to modify its Environmental Resource Permit (ERP) No. 11-02031P (2002 Permit) by changing the surface water management system (SWMS) for a proposed residential and golf course development in Collier County (County), Florida, known as Mirasol.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties National Audubon Society, Inc. is a not-for-profit corporation (incorporated outside the State of Florida) while Collier County Audubon Society, Inc., Florida Wildlife Federation, and Conservancy of Southwest Florida are Florida not-for-profit corporations. All are environmental organizations. Franklin Adams is a resident of the County and a member of each of the above organizations. Respondents have not contested Petitioners' standing based upon the stipulated facts set forth in the parties' Pre-Hearing Stipulation. The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Title 40E. Collier is the holder of the 2002 Permit authorizing the construction of a SWMS to serve the Mirasol project, a large development located in the County. The parties have stipulated that Collier has the administrative, legal, and financial capabilities to undertake the proposed activity. Fla. Admin. Code R. 40E-4.301(1)(j). The Project Site The Mirasol project consists of approximately 1,713.45 acres located on the north side of Immokalee Road and the Cocohatchee Canal (Canal) in the northern half of the County, approximately three miles east of the intersection with Interstate 75. The property spans three sections of land, the northern third of the property encompassing Section 10, the middle third encompassing Section 15, and the southern third encompassing most of Section 22. The site also includes a peninsula of land extending east of Section 10, encompassing the northernmost quarter of Section 11. The site is bounded on the south by the Canal and Immokalee Road and on the east by an existing residential development known as Heritage Bay, which was previously a rock- mining quarry. To the west of the site, running north to south, are two other proposed residential developments known as Parklands Collier and Terafina/Saturnia Falls and an existing residential and golf course community known as Olde Cypress. There are other existing and proposed residential developments and farm fields to the north of the site. The site is located southwest of the Corkscrew Swamp Sanctuary (Corkscrew Swamp), which is owned by the National Audubon Society, Inc., and appears to stretch from Immokalee (in the northeastern part of the County) south and southwestward through parts of the County. Corkscrew Swamp sits roughly at the center of a 315-mile watershed, much of which is comprised of short hydroperiod wetlands which dry down completely during the late winter and spring and become inundated again in the late summer and fall during the wet season. This water gradually sheet flows down a very slight downhill gradient toward the south and west. A portion of the sheet flow travels southwest in the vicinity of the site. The region has experienced occasional floods, the most severe of which occurred in 1995. At the direction of the District, the cause of the flooding was investigated in the South Lee County Watershed Study (Study), which concluded that the watershed discharges through a variety of outfalls, but that historic connections to downstream conveyances like the Canal were severed by the construction. While downstream conveyances exist, the Study concluded that connections between upstream flows and downstream conveyances should be enhanced or restored. In the late 1990s, the Canal was improved to increase its conveyance capacity. A berm was constructed by the Big Cypress Basin Board (Basin Board), a legislatively-created entity which manages water resources in the County, on the northern bank in the vicinity of, and across from, the Mirasol site. This berm prevented historic wet season sheet flow from reaching the Canal through the project site, except for a few culverts located along that water body. The Basin Board also built a 1,000-foot-long hardened concrete weir on the north side of the Canal a few thousand yards west of the project site. This weir provides the primary outlet for sheet flow in and around the Mirasol site. Currently, upstream drainage flows in a southwesterly direction across Section 10. As the water moves south to the Canal, the flow becomes constricted down to a 580-foot wide gap between the Olde Cypress residential development and commercial developments along Immokalee Road to the east. This constricted area further narrows to a 270-foot wide opening before the sheet flow reaches the 1,000-foot weir and discharges into the Canal. During a 3-day, 25-year storm event, a combined peak flow of 553 cubic feet per second (cfs) of water is discharged into the Canal through the 1,000-foot weir, but the Mirasol property only conveys a small portion of this water (around 20 cfs) through culverts in the Canal berm. Most of the water flows to the west of Mirasol where it passes through the narrow gap and over the 1,000-foot weir. Around 1,431 acres of the 1,714-acre site are jurisdictional wetlands. However, these wetlands are in poor condition due to existing impediments to sheet flow, artificially high water levels during the wet season, and heavy infestation of exotic species, principally melaleuca. Permit History In February 2002, the District issued the 2002 Permit approving the construction of a SWMS to serve two 18-hole golf courses, a single-family residential community, a golf course clubhouse and parking area, golf course maintenance facilities, sales facility, and parking area. The issuance of the 2002 Permit was not challenged. The SWMS included a 36.5-acre flow-way (Flow-Way) that encircled the northern boundary of the development in Section 15 and extended off-site and across adjacent properties to the west. (If constructed, the Flow-Way would be a 200-foot wide, 4-foot deep, 89-acre channel, more than half of which would have been located on the Saturnia Falls/Terafina and Olde Cypress properties.) Besides providing a conveyance function for the Mirasol site, the Flow-Way also enhanced flood protection for other properties by accelerating conveyance of floodwaters to the Canal and reducing peak flood stages by 0.4 feet during a three-day, 25-year storm event. The District included Special Condition 26 in the 2002 Permit, which required construction of the Flow-Way before the remainder of the project could be constructed. The 2002 Permit authorized Collier to directly impact (fill or excavate) 568.66 acres of wetlands within the footprint of the development. Additionally, 39.5 acres of wetlands, which were isolated remnant strips along the golf courses within the development, were considered secondarily impacted and assessed a thirty-three percent reduction in functional value. Mitigation for the project consisted of preservation and enhancement of wetlands and uplands on site. Enhancement of the preserve areas was primarily credited to the eradication of malaleuca and other exotic species and replanting with appropriate native vegetation. Permit conditions required management of the preserve areas to prevent a recurrence of exotic species. The preserve areas included an 846.95-acre external preserve area to the north and northeast of the area to be developed. It was anticipated that this northern preserve area would ultimately be donated to an existing mitigation area known as the Corkscrew Regional Ecosystem Watershed, along with an interest-bearing fund to ensure perpetual management. In December 2005, the United States Army Corps of Engineers (Corps) denied Collier's federal wetlands permit application for the project and the Flow-Way. Because of this denial, in May 2006 Collier submitted an ERP application with the District seeking to modify the 2002 Permit by revising the SWMS and removing the Flow-Way. On October 12, 2006, the District Governing Board approved a modification to the 2002 Permit, which authorized an alternate SWMS to serve the golf course and residential development (2006 Permit). Petitioners' challenge to the proposed modification followed. The 2006 Modification Because of the Corps' denial of its application, Collier was required to remove the Flow-Way and redesign the project's SWMS. The most substantial change in the project was the removal of the Flow-Way and associated control structures and its replacement with a series of interconnected lakes running from north to south through the property allowing for the pass-through of surface waters from the area north of the development site into the Canal. The modification does not alter the boundaries and location of the development. However, the revised SWMS includes: five controlled basins with a total area of 718.43 acres, each of which provides treatment of stormwater prior to discharging into the pass-through system; 45.16 acres of interconnected lakes serving as a pass-through for surface waters from the north; 2.12 acres of perimeter berm backslope/ buffers/spreader swales; and 7.27 acres along the Canal for the existing 100-foot wide canal easement and proposed canal contouring. These changes also required elimination of the 39.5 acres of remnant wetlands inside the development that had previously been assessed as secondarily impacted. Also, there were 0.68 acres of additional impacts resulting from slight changes in the internal site design due to the SWMS. To partially offset these impacts, the internal wetland preserves were enlarged by 13.32 acres. The remaining impacts were mitigated with mitigation credits from the Panther Island Mitigation Bank (PIMB). (The PIMB holds a mitigation bank permit issued by the District for a wetland restoration project in Southwest Florida.) The main preserve was left unchanged, except that 36.5 acres previously dedicated to construction of the Flow-Way will be added to the main preserve and similarly enhanced and preserved. In summary, as modified under the 2006 Permit, the total onsite mitigation consists of the preservation and enhancement of 830.89 acres of wetlands, preservation of 109.58 acres of uplands, and the purchase of a total of 5.68 credits from the PIMB. At hearing, Collier also agreed to purchase from the PIMB an additional 5.68 credits within the Basin for a total of 11.36 credits. The ERP Permitting Criteria To obtain an ERP, an applicant must satisfy the conditions in Florida Administrative Code Rules 40E-4.301 and 40E-4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality, while the second rule generally requires that a public interest balancing test be made, that cumulative impacts, if any, be considered, and that the District consider past violations, if any, by the applicant of District or Department of Environmental Protection (DEP) rules. (The parties have cited no prior violations by the applicant that should be considered.) Besides these two rules, a number of BOR provisions which implement the rule criteria must also be taken into account. If an applicant proposes to modify an existing ERP, as it does here, Florida Administrative Code Rule 40E-4.331(2)(a) comes into play and requires that the District review the application to modify the ERP "using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification." Under this rule, those portions of the project altered or affected by the modification are reviewed under the current ERP criteria, but otherwise the 2002 Permit is not the subject of review in this case. Therefore, the District's review includes only that portion of the existing permit that is proposed to be modified or affected by the modification. In this case, the 2006 design is very similar to the 2002 design, and the project's footprint, control elevations, roadway network, southern outfall, and main preserve are unchanged. However, as pointed out below, since most of the engineering-related components of the SWMS were affected by the Flow-Way's removal, the District reassessed the hydrologic components of the internal water management system and the pass- through lake system for levels of flood protection and water quality treatment. Because most of the engineering-related components of the SWMS for the project were modified as a result of the removal of the Flow-Way, the District staff reassessed the project's hydrologic calculations associated with levels of flood protection and reassessed the project's water quality treatment volumes applying the currently existing ERP criteria. As to wetland impacts and mitigation, review of the wetland impacts for the 2006 Permit was limited to an analysis of additional wetlands impacts associated with the modification. This was primarily the elimination of the previously permitted, secondarily impacted wetlands. Thus, only the additional wetlands impacts due to the revised SWMS are considered under the currently existing ERP criteria. The 2006 Permit made only slight changes to the project's wetland impacts and mitigation components authorized under the 2002 Permit. The project's footprint was not changed and the main mitigation area (the Northern Preserve) was unaffected by the changes except that 36.50 acres were actually added to that preserve as a result of the removal of the Flow- Way. Collier did not receive any credit in its mitigation analysis for the additional acreage that will become part of the preserve due to the removal of the Flow-Way. Surface Water Management Criteria As noted above, the ERP criteria in Florida Administrative Code Rule 40E-4.301 focus primarily on three areas of concern: water quantity, environmental impacts, and water quality. Related BOR provisions must also be considered. These areas of concern are discussed below. Water Quantity Florida Administrative Code Rule 40E-4.301(1)(a) requires that an applicant provide reasonable assurance that the construction of a SWMS "[w]ill not cause adverse water quantity impacts to receiving waters and adjacent lands." BOR Section 6.2 implements that provision and requires that a project be designed so that it is consistent with the downstream carrying capacity of the receiving waters. In other words, it must not exceed the capacity of downstream receiving waters, which in this case is the Canal. In making this determination, Section 6.3 of the BOR requires that the 25-year, 3-day design storm event be used. Collier complied with this requirement through an extensive hydrologic study conducted by its expert, Richard S. Tomasello, a former District employee. Applying a hydrologic model simulation known as S2DMM, the witness determined the appropriate amount of upstream sheet flow that would need to be routed through the project to avoid adverse water quantity and flooding impacts and calculated the correct dimensions of the intake weir to admit that flow into the project's pass-through system. The S2DMM model is a combination of other accepted models including the Sheet 2d, Massmod, and MBR models, which were developed by Mr. Tomasello, and they have been evaluated and used by the District on numerous occasions. In addition, the S2DMM model has been used for other flood studies in Collier and Lee Counties, and it will be used on a restoration project in Martin County. Based upon Mr. Tomasello's analysis, Collier incorporated a 100-foot-long intake weir with a crest elevation of 14.95 NGVD (National Geodetic Vertical Datum) along the northern boundary of the project to maintain existing upstream water elevations. Collier also complied with BOR Section 6.3, which requires the use of a 25-year, 3-day storm event to be used when computing the discharge rate for the project. The modified intake weir on the northern boundary includes two 3.5-foot wide rectangular notches set at an elevation of 14.00 NGVD, which will provide a "base flow" of up to 20 cfs into the pass-through lakes to mimic the current flow through the property. The determination of this base flow was made through an analysis of the existing culverts at the southern end of the property. While not required by the ERP criteria, Collier also performed a long-term analysis (using a four-year period of record) of the SWMS's effect upon water levels. This analysis demonstrated that the modified system would leave water levels in the wetland areas upstream of the project unchanged during normal rainfall and low-flow periods. This analysis provides additional assurances that the modifications to the SWMS will not affect the Northern Preserve. While Petitioners questioned the accuracy and reliability of the hydrologic study, and its specific application to this project, the criticisms are considered to be vague and unsubstantiated. As noted above, the model has been previously accepted for use in South Florida, and Petitioners' expert conceded he did not have enough information to determine the model's accuracy. The more persuasive evidence established that the hydrologic study submitted by Collier included the relevant available data and was prepared by competent professionals knowledgeable in the field. The claim of Petitioners' experts that they lacked sufficient information to form an opinion on the accuracy of the modeling is not a sufficient basis to overcome the evidence submitted by Collier to meet this criterion. The project's discharge rate in 2006 will not exceed what was permitted in the 2002 Permit. During the 25-year, 3-day storm event, the existing discharge from the project site and the natural area west of the project site into the Canal is 553 cfs. Based on modeling of the modified SWMS, the total discharge from the pass-through system will be 529 cfs, or 24 cfs less than the project's existing pre-development discharge. The discharges resulting from the project as modified in 2006 will not exceed the capacity of the Canal as required by Section 6.3 of the BOR. Accordingly, Collier has provided reasonable assurance that the discharge rate allowed for its project would not be exceeded, as required in Section 6.2 of the BOR. Section 6.8 of the BOR requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving water bodies are not being adversely affected. Collier complied with this provision by conducting the hydrologic analysis using the 25-year, 3-day design storm event, which demonstrated that the discharge rate would be directed to the southern discharge point allowing for the passage of drainage from offsite areas to the downstream areas. The evidence also shows that the current predominant sheetflow from areas outside the project passes through a narrowly constricted area west of the project and discharges into the Canal over an existing concrete weir. See Finding of Fact 9, supra. Only a small portion of the upstream waters currently discharge through the Mirasol site. Petitioners' allegation that the construction of the project will further constrict the sheetflow area is rejected, as the constriction of sheetflow will continue to exist whether the project is built or not. The evidence also shows that the project will not further constrict the flow because it will allow for the pass-through of water from outside the project area. Under the 2002 Permit, the Flow-Way was designed to aid in the diversion of upstream flows around the project. Under the 2006 modifications, the pass-through lake system will convey up to forty percent of the upstream flow through the development which complies with the provisions of Section 6.8 of the BOR. As indicated above, during periods of lower water levels, the notches in the weir along the northern boundary will allow for the flow to pass onto the project site consistent with existing conditions. During major storm events, water will pass over the weir into the pass-through lake system to be conveyed to the Canal. Therefore, Collier has provided reasonable assurance that the criteria in Section 6.8 have been met. Section 6.10 of the BOR requires that the project be designed to conserve water and site environmental values and not lower the water table or groundwater or over-drain wetlands. Section 6.11 of the BOR provides that the control and detention elevations for the project must be established at elevations to accomplish the objectives of Section 6.10. The latter section is adhered to when the control elevations proposed for a project are established consistent with the onsite wetland conditions. In this case, the control elevations for the wetlands and surface water management lakes are essentially the same as the design in the 2002 Permit. Collier has set the control elevations above the average wet season water table (WSWT) for the area, thereby ensuring that the SWMS will not over-drain and will conserve fresh water. Section 6.11 of the BOR addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. The SWMS design control elevation maintains the detention component and the control (wetland protection) elevations in the previously approved SWMS. The control elevations were set by the design engineers in consultation with Collier's wetland ecologist taking into account the ground elevations and biological indicators. The control elevation for the pass-through system and internal drainage basins work in conjunction with the control elevation along the northern boundary of the project and the control elevation for the discharge point along the southern boundary to ensure that the project does not overdrain the wetlands and to preserve the project site's environmental values. By setting the control elevation above the WSWT, the design ensures that the wetlands will not be drawn down below the average WSWT and the SWMS will not over-drain them. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, based on the control elevations, the water table is not expected to be lowered so there should be no effect on the existing rights of others. Collier must further demonstrate that the site's groundwater recharge characteristics will be preserved through the design of the SWMS. Collier complied with this requirement by setting the control elevations above the average WSWT, allowing standing water in the wetland preserves to recharge the groundwater. The ability of the SWMS to accept flows from the Northern Preserve conserves freshwater by preventing that water from being discharged downstream. The SWMS leaves water elevations in the Northern Preserve unchanged. Consequently, water will remain in the wetlands for the same duration and elevations as in the existing conditions, thereby preserving groundwater recharge characteristics. Section 6.12 of the BOR prohibits lake designs that create an adverse gradient between the control elevations of the lakes and the adjacent wetlands. To satisfy this requirement, Collier set all control elevations at 13.4 - 13.5 NGVD while controlling the internal wetland preserves at a slightly higher elevation. Consequently, there is no adverse gradient and no potential for an adverse effect upon the internal preserves from adjacent lakes. Petitioners argued that the pass-through system would quickly lower water levels in the internal wetland preserves. However, the internal wetlands are still protected from drawdown because there are control structures set at or above the wet season elevation between the pass-through lakes and internal wetlands. They also argued that the internal wetlands would be overdrained during the dry season by the deep lakes. However, no witness presented any real analysis to back up this contention. Indeed, the pass-through lakes are only twelve feet deep, and the wetlands are separated from all the lakes by protective berms to avoid any drawdown. In summary, Collier has provided reasonable assurances that the proposed modification in the 2006 Permit will not cause adverse water quantity impacts to receiving waters or adjacent lands and will not exceed the capacity of the downstream receiving waters (the Canal). Flooding Florida Administrative Code Rule 40E-4.301(1)(b) requires Collier to demonstrate that the project "[w]ill not cause adverse flooding to on-site or off-site property." BOR Section 6.4 sets forth criteria and standards for implementing this requirement and provides that building floors be designed to be protected from a 100-year, 3-day storm event. BOR Section 6.5 provides criteria and standards for flood protection for the project's roads and parking lots. Collier complied with these provisions by providing construction plans demonstrating that the building floors and roads will be built higher than the 100-year, 3-day storm event. BOR Section 6.6 provides that a project may not result in any net encroachment into the 100-year floodplain. Collier was also required to comply with the historic basin provision in Section 6.7 of the BOR, which requires the project to replace or otherwise mitigate the loss of historic basin storage provided by the site. The level of encroachment into the 100-year flood plain and loss of historic basin storage attributed to the project are essentially unchanged from the 2002 design. The only difference between the 2002 Permit and the 2006 Permit is how the conveyance of flood water is provided. In 2002, the Flow-Way served this function, while the pass-through system provides it in the 2006 Permit. Collier's flood simulations demonstrated that the project will not alter flood stages during the 25-year and 100- year design storms, while the testimony of witnesses Tomasello and Waterhouse established that the project will not have adverse flooding impacts on adjacent properties, either alone or in conjunction with neighboring developments. Storage and Conveyance Florida Administrative Code Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development "[w]ill not cause adverse impacts to existing surface water storage and conveyance capabilities." This criterion is closely related to paragraph (1)(b) of the same rule, which prohibits adverse flooding to onsite or offsite property. Section 6.6 of the BOR implements this provision and specifies the parameters for applying this criterion and prohibits a net encroachment between the WSWT and the 100-year event which will adversely affect the existing rights of others. Collier addressed this criterion through the hydrologic analysis submitted. As previously found, that model is the appropriate model to determine flood stages and to calculate the floodplain. Engineering Design Principles Florida Administrative Code Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS "[w]ill be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Section 7.0 of the BOR contains the specific standards and criteria to implement this rule. The evidence demonstrates that the SWMS is based on generally accepted engineering and scientific principles and is capable of performing and functioning as proposed. Section 8.0 of the BOR includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the design, Collier complied with Section 8.0. Water Quality Impacts Florida Administrative Code Rule 40E-4.301(1)(e) requires that the proposed modification "[w]ill not adversely affect the quality of the receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62- 4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated." Stated more plainly, the proposed modifications must not adversely affect the quality of the Canal's waters such that State water quality standards will be violated. Section 5.2 of the BOR describes the District's standard water quality criteria. This provision, which requires a minimum of one-inch detention of stormwater, is referred to as a "presumptive criteria" because it is presumed that if an applicant provides the required one inch of detention, it meets Class III water quality standards, thereby satisfying the rule. As it did under the 2002 Permit, Collier satisfies the presumptive criteria with the 2006 design by providing the one- inch wet detention in its lake system. In fact, the system is designed to provide one and a half inches of treatment in the lake system thereby providing additional treatment. The receiving body of water for the project is the Canal. When the 2002 Permit was issued, the Canal was classified as a Class III water body. It is now classified by DEP as impaired for iron and dissolved oxygen. Because of this new classification, Collier must now comply with Section 4.2.4.5 of the BOR, which reads as follows: If the site of the proposed activity currently does not meet water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. Collier demonstrated that neither short-term (during construction) nor long-term (during operation) water quality impacts will occur. It complied with the short-term requirements by submitting a Construction Pollution Prevention Plan detailing how water quality will be protected during the construction process. As to long-term impacts, the Terrie Bates Water Quality Memorandum (Bates Memo) prepared by District staff on June 11, 2004, provides guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired water body. The document sets forth a number of design and operational criteria for the types of additional measures that can be incorporated into a project design to provide the necessary reasonable assurance. The Bates Memo suggests that an additional fifty percent of treatment be incorporated into a SWMS. Collier complied with this suggestion by designing the treatment lakes to provide an additional one-half inch of treatment for the additional fifty percent treatment. In addition to the one and one-half inch treatment, Collier is implementing six of the seven items the Bates Memo lists as potential options to consider. The long-term water quality requirement is addressed by Collier, in part, through an Urban Stormwater Management Plan, which details various source controls or best management practices to be implemented once the project is built and operating. Best management practices assist in ensuring that pollutants will not enter into the lake system. Collier is also implementing a stormwater pollution prevention plan and will utilize the lake system for additional treatment downstream. Collier has further agreed to planting the littoral zones as part of its design of the treatment lakes to provide additional pollutant removal. The design calls for an amount of littoral zones equal to twenty percent of the surface area of the treatment lakes. Collier has agreed to make a Water Quality Monitoring Plan a permit condition, even though such a condition was not included in the staff report. See Collier Exhibit 25. The Bates Memo includes as an option for meeting the long-term requirement a site-specific water quality evaluation of pre vs. post-development pollutant loadings. Collier has presented several such analyses, all of which indicate the post- development pollutant discharges from the site will be less than the pre-development. Mr. Barber prepared a pre vs. post- analysis using a 2003 methodology developed by Dr. Harper. The 2003 version of the Harper methodology is currently accepted by the Corps. (Although Petitioners' witness, a former Corps employee, suggested that the Corps' acceptance of the study was a "political" rather than a scientific decision, there is insufficient evidence to support this contention.) Besides his first analysis, at the direction of the District staff, Mr. Barber prepared a second analysis using the 2003 methodology with certain conservative assumptions that limited the pollutant residents time to fifty days and utilized lower starting concentrations for phosphorous and nitrogen than were recorded in the nearby monitoring stations. Based upon those reports, the District's staff concluded that Collier had provided reasonable assurances that the project met the criteria in BOR Sections 5.2 and 4.2.4.5. At the hearing, Mr. Barber presented a third analysis utilizing an updated methodology developed by Dr. Harper in February 2006. The 2006 methodology was developed after Dr. Harper conducted a study of water management district criteria throughout the state for DEP. All three of the analyses prepared by Mr. Barber concluded that the project would discharge less nitrogen and phosphorous into the receiving body in the post-development condition than is currently being discharged in the pre-development condition. In addition to the three water quality submittals from Mr. Barber, Collier provided an additional water quality analysis specific to the project prepared by Dr. Harper. See Collier Exhibit 26, which is commonly referred to as the Harper Report. The analysis evaluated the project's pre vs. post- development water quality loads and also concluded the project would not contribute to the impairment of the Canal. In preparing his analysis, Dr. Harper relied solely on the lakes for estimating removal of pollutants without accounting for any of the additional treatment expected to occur from the source control best management practices contained in the Urban Stormwater Management Plan, which means his report errs on the conservative side. The Harper Report concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/L. Petitioners presented no specific evidence to counter these conclusions. Petitioners questioned the Harper Report's use of wetlands as part of the loading calculations and attacked his underlying methodology. However, the evidence is clear that wetlands contribute to the water quality constituents in the pre-development condition. This finding is based on data from monitoring stations located in the middle of Corkscrew Swamp, a statewide study on stormwater treatment and wetlands, and the United States Environmental Protection Agency's (EPA) assignment of nutrient loading rates to wetlands in its regional pollutant loading model. Ignoring the actual water quality in pre-development conditions would not be a true pre vs. post-development analysis. Finally, Petitioners' contention that the Harper methodology should not be considered as admissible evidence because it constitutes "novel" (and therefore unreliable) scientific evidence under the rationale of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), has been rejected. To begin with, the Frye test has not been accepted in Florida administrative proceedings. Moreover, the methodology is the basis for a new statewide rulemaking effort, has been accepted by the EPA, the Corps, and by the Division of Administrative Hearings in at least two proceedings, and has been subjected to two peer reviews. Petitioners also alleged that Collier failed to show that it complied with Florida Administrative Code Rule 62- 40.432(2)(a)1., a rule administered by DEP which requires that a new SWMS "[a]chieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards." However, this is a broad overstatement of DEP's rule. Also, there is no eighty percent removal efficiency requirement adopted or incorporated into any District rule or BOR criteria. See, e.g., Conservancy of Southwest Florida, Inc. v. G.L. Homes of Naples Associates II, LTD et al., DOAH Case No. 06-4922 (DOAH May 15, 2007, SFWMD July 11, 2007). Instead, the District's "presumptive criteria" is that one inch of volumetric treatment required in Section 5.2 of the BOR meets the Class III standards. If, as in this case, additional assurances are required, those assurances are met through implementation of the BOR Section 4.2.4.5. Finally, Florida Administrative Code Rule 62-40.110(2) provides that Rule Chapter 62-40 is "intended to provide water resource implementation goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Also, Florida Administrative Code Rule 62- 40.110(4) states that "[t]his chapter, in and of itself, shall not constitute standards or criteria for decisions on individual permits. This chapter also does not constitute legislative authority to the Districts for the adoption of rules if such rules are not otherwise authorized by statute." Even if an eighty percent reduction standard applied, Collier has demonstrated that the project very likely will remove eighty percent or more of pollutants when additional low-impact development techniques, pollutant source reduction practices, and additional uncredited wet and dry detention capacity are considered. Based upon the evidence presented, Section 4.2.8 of the BOR regarding cumulative impacts for water quality is not applicable in this case. Collier's submittals provide reasonable assurances that the project will not be contributing to the water quality impairment of the Canal or contribute to any other water quality violation. Indeed, the information submitted indicates there will be an incremental improvement in the post-development condition as compared to existing. Since no contribution or impacts to water quality are expected, a cumulative impact analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, demonstrates that the 2006 Permit will not adversely affect the quality of receiving waters such that state water quality standards will be violated. Therefore, reasonable assurance has been given that Florida Administrative Code Rule 40E-4.301(1)(e) will be satisfied. Wetland Impacts Florida Administrative Code Rule 40E-4.301(1)(d) requires Collier to provide reasonable assurance that the modification of the SWMS "[w]ill not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters." In determining whether this criterion has been satisfied, it is also necessary to determine whether any 2002 permitted impacts should be subject to a second review in this case. Mitigation is a method by which an applicant can propose to impact certain wetlands on the project site in exchange for providing compensation in the form of preserving, enhancing, restoring, or creating wetlands or uplands to offset those impacts. As noted earlier, there has been no change to the wetland impacts or mitigation proposal as it relates to the Northern Preserve. See Findings of Fact 27 and 28, supra. As a result of the modified SWMS, there has been some additional impact to wetlands within the development area of the project. An additional 40.18 acres will be impacted under the 2006 Permit mostly due to the modified SWMS system. However, 39.5 acres of those wetlands were already considered secondarily impacted under the 2002 Permit. In addition, the preserve areas were expanded by 13.32 acres in the 2006 design. Thus, a portion of the impacts to those wetlands was already factored into the mitigation plan that was developed and approved for the 2002 Permit. As a result, there are 26 acres for which mitigation is necessary under the 2006 Permit. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Collier has proposed an acceptable mitigation plan for the new wetland impacts that will result from the project due to the proposed modifications incorporated in the 2006 Permit. Except for the mitigation for the additional wetland impacts, the mitigation plan for the 2006 Permit remains essentially unchanged from the 2002 Permit, including the Grading and Planting Plan, Monitoring Plan, and Mitigation, Monitoring, and Maintenance Plan. The onsite mitigation proposal includes preservation and restoration of wetlands through the removal of melaleuca and other exotic plants and replanting in areas of dense exotic species coverage. Significantly, Collier has not proposed any modifications that would change the effectiveness of the Northern Preserve in providing mitigation for the wetland impacts proposed and approved in the 2002 Permit. While Petitioners claim that the wetlands in the Northern Preserve may be subject to some changes in the level and seasonality of inundation as a result of the SWMS modifications, the evidence does not support those assertions. The revised SWMS will continue to allow water to flow through the Northern Preserve in a manner consistent with existing conditions while providing some flood control protection for extreme rainfall events. Petitioners also suggest that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts of the modified SWMS on the wetlands. However, the more persuasive testimony indicates that the timing and levels within the wetlands will not be affected by the revised SWMS. The control elevations within the development area have not changed from the 2002 Permit, and these protect the onsite wetlands and ensure that those wetlands will function as expected. With respect to the internal wetlands within the development area, the control elevations have not changed from the 2002 Permit and the evidence establishes that the internal wetlands will continue to function and operate as contemplated in the 2002 Permit. There has been some relocation and reconfiguration of the internal wetland preserve areas that will actually enhance the value of the mitigation by connecting those wetland areas to other preserve areas. Petitioners further suggested that the wetland mitigation within the development area would not function as permitted in the 2002 Permit due to the spill over from the lakes to the wetlands. However, when the water reaches those internal wetland preserves, it has been treated to Class III water quality standards. Therefore, the mitigation values of those wetlands preserves will not be changed or affected due to water quality. Petitioners' objections to the wetland impacts and mitigation were primarily directed at the overall impacts rather than to the 2006 modifications. However, their witness was unaware of the values provided by the additional acres that will be impacted through the 2006 Permit. Therefore, a challenge to 2002 permitted wetlands impacts and mitigation is inappropriate in this proceeding. Functions To Fish and Wildlife and Listed Species Section 4.2.2 of the BOR implements Florida Administrative Code Rule 40E-4.301(1)(d) and provides that an applicant must provide reasonable assurances that a project will not cause adverse impact to the abundance and diversity of fish, wildlife, and listed species or their habitat. With respect to the 586.66 acres of wetland impacts permitted in the 2002 Permit, the 2006 Permit does not modify or affect the values that the wetlands provide to either the abundance or diversity of fish and wildlife. Review of the wetlands criteria as to those acres was finally determined in the 2002 Permit and should not be reopened. By relocating thirteen of the previously impacted acres so they are most closely connected to other wetlands, their value to fish and wildlife will increase. As explained by the District's witness Bain, if Collier had moved the preserve area and changed its functional value, the District would have been required to reevaluate the mitigation that had been accepted for the wetland impacts in the 2002 permit. In this case, however, because the Northern Preserve area did not change, the District's review is limited to the newly impacted wetlands internal to the development for which mitigation was not provided in the 2002 Permit. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the project's wetlands. The only wetland values assessed in the 2006 Permit were the additional wetland impacts that were not mitigated in the 2002 Permit. The evidence establishes that the current value of the wetlands is low due to the heavy melaleuca infestation, which is greater than fifty percent coverage in most locations and seventy-five percent or more in much of the area. Melaleuca has the effect of draining short hydroperiod wetlands. While Petitioners may disagree with how the wetlands were previously evaluated, nothing in the 2006 modification allows or requires a reassessment of their value. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod (the depth, duration, or frequency of inundation) of wetlands or other surface waters. Subsection (a) of this standard applies if the project is expected to reduce the hydroperiod in any of the project's wetlands. Conversely, subsection (b) applies if the project is expected to increase the hydroperiod through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Again, there is no basis for the District to reopen and reevaluate the wetlands for which mitigation has already been permitted. No evidence was presented to indicate that there would be any obstacles or problems to accomplishing the mitigation that was proposed and accepted in 2002. In any event, the engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Northern Preserve will occur from what was permitted in the 2002 Permit. By analyzing the various biological indicators onsite and setting the control elevations within the SWMS and the wetlands (both the Northern Preserve and onsite preserve wetlands) above the WSWT, the project ensures that the appropriate hydrology will be maintained. Though the fish and wildlife are not expected to be adversely affected by the 2006 Permit, Collier will be conducting monitoring of plants and animals on the site as an extra measure of assurance as contemplated under BOR Section 4.2.3.4(c). Focusing on just the changes from 2002 to 2006, Petitioners' two experts conceded that the hydrology in the Northern Preserve and its value to wildlife and listed species (including the wood stork) would be benefited in the 2006 Permit over that contemplated in the 2002 Permit due to the removal of the Flow-Way. Secondary Impacts to Water Resources Florida Administrative Code Rule 40E-4.301(1)(f) requires a demonstration that the proposed activities "[w]ill not cause adverse secondary impacts to the water resources." A similar demonstration is required by Sections 4.1.1(f) and 4.2.7 of the BOR. In this case, the secondary impacts considered by the District were potential impacts due to the relocation and expansion of the buffer preserve areas to the perimeter of the project site. In conducting a secondary impact analysis, BOR Section 4.2.7 requires that the District consider only those future projects or activities which would not occur "but for" the proposed system. Here, the evidence demonstrated that no wetlands or other surface waters will be secondarily impacted by the modifications to the SWMS as part of the 2006 Permit. The undersigned has rejected Petitioners' contention that a proposed extension of County Road 951 through the development site should be considered a secondary impact in evaluating this project. This extension has been proposed for at least fifteen years and its precise configuration is unclear. It is not required to be built as a result of the project and there are no firm plans or contracts in place to construct the road. Although the road is listed on the County's transportation plan, it remains speculative as to if and when it will be built. Additionally, there is no evidence the County has any ownership interest in property for a road in the area identified by Petitioners. Witness Bain testified that the District examined the Collier County Public Records and an easement had not been granted to the County to build the road. i. Elimination and Reduction Florida Administrative Code Rule 40E-4.301((3) provides in part that "the provisions for elimination or reduction of impacts contained in the [BOR] shall determine whether the reasonable assurances required by subsection 40E- 4.301(1) and Rule 40E-4.302, F.A.C., have been provided." Section 4.2.1.1 of the BOR implements that provision and provides that elimination and reduction of impacts is not required when: The ecological value of the function provided by the area of wetland or other surface water to be adversely affected is low based on site specific analysis using the factors in subsection 4.2.2.3 and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected; . . . In accordance with that section, Collier was not required to implement practicable design modifications to reduce or eliminate impacts. The District did a site-specific analysis of the quality of the 39.5 acres of adversely affected wetlands, taking into consideration the condition of the wetlands, hydrologic connection, uniqueness, location, and fish and wildlife utilization. The unrebutted testimony is that the quality of the 39.5 acres of wetlands to be impacted by the 2006 Permit is low and these wetlands were already previously authorized to be secondarily impacted. The low quality wetlands are melaleuca dominated making them not unique. The mitigation will provide greater long-term ecological value than the impacted wetlands. As noted on page 10 of the Staff Report, there will be a larger, contiguous mitigation area to offset direct impacts to previously preserved, but secondarily impacted wetlands and the preservation/enhancement of the external preserve area. The 2006 Permit provides that 5.68 credits are required to be purchased in the PIMB. Collier has advised the District that 27.68 credits are being purchased pursuant to its Corps permit. Thus, Collier will be purchasing more credits than required by the District. Witness Bain took this additional mitigation into account in determining whether the proposed mitigation will provide greater long term ecological value than the area impacted. While the Corps permit is an entirely separate permit action, Collier has agreed to include an additional 5.68 credits within the Basin beyond what is required in the Staff Report as a condition to this 2006 Permit. Therefore, the mitigation is clearly of greater long-term ecological value than the area impacted. Additional Requirements Florida Administrative Code Rule 40E-4.302 imposes additional requirements on an ERP applicant, including a cumulative impact assessment, if appropriate, and satisfaction of a public interest test. Cumulative Impacts Florida Administrative Code Rule 40E-4.302(1)(b) requires that an applicant demonstrate the project "[w]ill not cause unacceptable cumulative impacts upon wetlands and other surface waters as set forth in subsections 4.2.8 through 4.2.8.2 of the [BOR]." Cumulative impacts are the summation of unmitigated wetland impacts within a drainage basin, and a cumulative impact analysis is geographically based upon the drainage basins described in Figure 4.2.8-1 of the BOR. See Florida Wildlife Federation et al. v. South Florida Water Management District et al., 2006 Fla. ENV LEXIS 49 at *49, DOAH Case Nos. 04-3064 and 04-3084 (DOAH Dec. 3, 2006, SFWMD Dec. 8, 2006). Also, Section 373.414(8)(a), Florida Statutes, requires the District to consider the cumulative impacts upon surface water and wetlands within the same drainage basin. Thus, the cumulative impact analysis applies only when mitigation is proposed outside of the drainage basin within which the impacts are to occur. Broward County v. Weiss et al., 2002 Fla. ENV LEXIS 298 at *29, DOAH Case No. 01-3373 (DOAH Aug. 27, 2002, SFWMD Nov. 14, 2002). In this case, all of the proposed mitigation associated with the 2006 Permit modifications is located within the West Collier Basin. The evidence shows that the mitigation will offset the impacts to wetlands proposed in the 2006 Permit. Therefore, since the mitigation will be performed in the same Basin as the impacts and will offset the adverse impacts, the District must "consider the regulated activity to meet the cumulative impact requirements" of Section 373.414(8)(a), Florida Statutes. A new cumulative impacts analysis based on removal of the Flow-Way is not necessary because the modification does not change the cumulative impacts analysis conducted in the 2002 Permit. Since the Flow-Way was not considered a wetland impact or contributing to the mitigation in the 2002 Permit, its removal does not affect the adequacy of the previously conducted cumulative impacts analysis or the mitigation. Accordingly, there is no need for a new cumulative impact analysis with regards to the Northern Preserve. Finally, contrary to Petitioners' assertion, there is no rule or BOR provision which requires Collier to mitigate for the alleged prior impacts of other projects. Public Interest Test In addition to complying with the above criteria, because the project is located in, on, or over wetlands or other surface waters, Collier must also address the criteria contained in the Public Interest Test in Florida Administrative Code Rule 40E-4.302(1) and Section 4.2.3 of the BOR by demonstrating that the project is not contrary to the public interest. See also § 373.414(1)(a), Fla. Stat. Since the project does not discharge into an OFW or significantly degrade an OFW, the higher standard of "clearly in the public interest" does not apply. In determining compliance with the test, Florida Administrative Code Rule 40E-4.302(1)(a) requires that the District do so by "balancing the [seven] criteria [in the rule]." Findings with respect to each of the seven criteria are set out below. (Except for pointing out that the District does not have an adopted rule which provides more specific detail on how to perform the balancing test than is now found in paragraph (1)(a), and a contention that witness Bain's testimony was insufficient to explain how the staff balanced those factors, Petitioners did not present any evidence at hearing or argument in their Proposed Recommended Order in support of their contention that the above rule, BOR section, or the associated statute have been applied by the District in an unconstitutional manner.) Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.) Collier provided reasonable assurances that the project will not cause any onsite or offsite flooding nor cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria. Also, the post- development peak rate of discharge does not exceed the allowable discharge rate. Further, the project will not cause any environmental hazards affecting public health, safety, or welfare. The project is considered neutral as to this factor. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.) For the direct wetland impacts under the 2006 Permit, Collier proposes mitigation which has not changed from the 2002 Permit. The mitigation proposed was previously determined to offset potential impacts to fish and wildlife and particularly wood stork habitats. The evidence indicates that the mitigation plan for the Northern Preserve will improve wood stork habitat from its current melaleuca infested condition. For the additional 40.18 acres of wetland impacts authorized in 2006, the mitigation is of greater long-term value. Thus, the project should be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.) The parties have stipulated that the project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the project's construction would result in harmful erosion or shoaling. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.) The project does not provide any fishing, recreational values, or marine productivity. Therefore, the project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.) It is undisputed that the project is permanent in nature. Even though the project is permanent, it is considered neutral as to this factor because mitigation will offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.) The parties have stipulated that no significant archeological or historical resources have been identified on this site. Therefore, the project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.) The current condition and relative value of functions being performed by the areas affected by the project is low due to the melaleuca infestation. Project mitigation will restore 940 acres of poor quality wetlands and uplands, greatly enhancing their function and value. Therefore, the project should be considered positive as to this factor because the implementation of the mitigation offsets the wetland impacts and improves the current value. Summary of Public Interest Factors Overall, the project is no worse than neutral measured against any one of the criteria individually. Therefore, the project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting the application of I. M. Collier, J.V. for a modification to Environmental Resource Permit No. 11-02031P. DONE AND ENTERED this 24th day of July, 2007, 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 24th day of July, 2007.
The Issue The issue to be determined is whether Consumptive Use Permit No. 2-083-91926-3, and Environmental Resource Permit No. IND-083-130588-4 should be issued as proposed in the respective proposed agency actions issued by the St. Johns River Water Management District.
Findings Of Fact The Parties Sierra Club, Inc., is a national organization, the mission of which is to explore, enjoy, and advocate for the environment. A substantial number of Sierra Club’s 28,000 Florida members utilize the Silver River, Silver Springs, the Ocklawaha River, and the St. Johns River for water-based recreational activities, which uses include kayaking, swimming, fishing, boating, canoeing, nature photography, and bird watching. St. Johns Riverkeeper, Inc., is one of 280 members of the worldwide Waterkeepers Alliance. Its mission is to protect, restore, and promote healthy waters of the St. Johns River, its tributaries, springs, and wetlands -- including Silver Springs, the Silver River, and the Ocklawaha River -- through citizen- based advocacy. A substantial number of St. Johns Riverkeeper’s more than 1,000 members use and enjoy the St. Johns River, the Silver River, Silver Springs, and the Ocklawaha River for boating, fishing, wildlife observation, and other water-based recreational activities. Karen Ahlers is a native of Putnam County, Florida, and lives approximately 15 miles from the Applicant’s property on which the permitted uses will be conducted. Ms. Ahlers currently uses the Ocklawaha River for canoeing, kayaking, and swimming, and enjoys birding and nature photography on and around the Silver River. Over the years, Ms. Ahlers has advocated for the restoration and protection of the Ocklawaha River, as an individual and as a past-president of the Putnam County Environmental Council. Jeri Baldwin lives on a parcel of property in the northeast corner of Marion County, approximately one mile from the Applicant’s property on which the permitted uses will be conducted. Ms. Baldwin, who was raised in the area, and whose family and she used the resources extensively in earlier years, currently uses the Ocklawaha River for boating. Florida Defenders of the Environment (FDE) is a Florida corporation, the mission of which is to conserve and protect and restore Florida's natural resources and to conduct environmental education projects. A substantial number of FDE’s 186 members, of which 29 reside in Marion County, Florida, use and enjoy Silver Springs, the Silver River, and the Ocklawaha Aquatic Preserve, and their associated watersheds in their educational and outreach activities, as well as for various recreational activities including boating, fishing, wildlife observation, and other water-based recreational activities. Sleepy Creek Lands, LLC (Sleepy Creek or Applicant), is an entity registered with the Florida Department of State to do business in the state of Florida. Sleepy Creek owns approximately 21,000 acres of land in Marion County, Florida, which includes the East Tract and the North Tract on which the activities authorized by the permits are proposed. St. Johns River Water Management District (SJRWMD or District) is a water-management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The Consumptive Use Permit The CUP is a modification and consolidation of two existing CUP permits, CUP No. 2-083-3011-7 and CUP No. 2-083- 91926-2, which authorize the withdrawal of 1.46 mgd from wells located on the East Tract. Although the existing CUP permits authorize an allocation of 1.46 mgd, actual use has historically been far less, and rarely exceeded 0.3 mgd. The proposed CUP modification will convert the authorized use of water from irrigation of 1,010 acres of sod grass on the East Tract, to supplemental irrigation of improved pasture for grass and other forage crops (approximately 97 percent of the proposed withdrawals) and cattle watering (approximately three percent of the proposed withdrawals) on the North Tract and the East Tract. An additional very small amount will be used in conjunction with the application of agricultural chemicals. CUP No. 2-083-3011-7 is due to expire in 2021. CUP No. 2-083-91926-2 is due to expire in 2024. In addition to the consolidation of the withdrawals into a single permit, the proposed agency action would extend the term of the consolidated permit to 20 years from issuance, with the submission of a compliance report due 10 years from issuance. Sleepy Creek calculated a water demand of 2.569 mgd for the production of grasses and forage crops necessary to meet the needs for grass-fed beef production, based on the expected demand in a 2-in-10 drought year. That calculation is consistent with that established in CUP Applicant’s Handbook (CUP A.H.) section 12.5.1. The calculated amount exceeds the authorized average allocation of 1.46 mgd. Mr. Jenkins testified as to the District’s understanding that the requested amount would be sufficient, since the proposed use was a “scaleable-type project,” with adjustments to cattle numbers made as necessary to meet the availability of feed. Regardless of demand, the proposed permit establishes the enforceable withdrawal limits applicable to the property. With regard to the East Tract, the proposed agency action reduces the existing 1.46 mgd allocation for that tract to a maximum allocation of 0.464 mgd, and authorizes the irrigation of 611 acres of pasture grass using existing extraction wells and six existing pivots. With regard to the North Tract, the proposed agency action authorizes the irrigation of 1,620 acres of pasture and forage grain crops using 15 center pivot systems. Extraction wells to serve the North Tract pivots will be constructed on the North Tract. The proposed North Tract withdrawal wells are further from Silver Springs than the current withdrawal locations. The proposed CUP allows Sleepy Creek to apply the allocated water as it believes to be appropriate to the management of the cattle operation. Although the East Tract is limited to a maximum of 0.464 mgd, there is no limitation on the North Tract. Thus, Sleepy Creek could choose to apply all of the 1.46 mgd on the North Tract. For that reason, the analysis of impacts from the irrigation of the North Tract has generally been based on the full 1.46 mgd allocation being drawn from and applied to the North Tract. The Environmental Resource Permit As initially proposed, the CUP had no elements that would require issuance of an ERP. However, in order to control the potential for increased runoff and nutrient loading resulting from the irrigation of the pastures, Sleepy Creek proposes to construct a stormwater management system to capture runoff from the irrigated pastures, consisting of a series of vegetated upland buffers, retention berms and redistribution swales between the pastures and downgradient wetland features. Because the retention berm and swale system triggered the permitting thresholds in rule 62-330.020(2)(d) (“a total project area of more than one acre”) and rule 62-330.020(2)(e) (“a capability of impounding more than 40 acre-feet of water”), Sleepy Creek was required to obtain an Environmental Resource Permit for its construction. Regional Geologic Features To the west of the North Tract is a geologic feature known as the Ocala Uplift or Ocala Platform, in which the limestone that comprises the Floridan aquifer system exists at or very near the land surface. Karst features, including subterranean conduits and voids that can manifest at the land surface as sinkholes, are common in the Ocala Uplift due in large part to the lack of consolidated or confining material overlaying the limestone. Water falling on the surface of such areas tends to infiltrate rapidly through the soil into the Floridan aquifer, occasionally through direct connections such as sinkholes. The lack of confinement in the Ocala Uplift results in few if any surface-water features such as wetlands, creeks, and streams. As one moves east from the Ocala Uplift, a geologic feature known as the Cody Escarpment becomes more prominent. In the Cody Escarpment, the limestone becomes increasingly overlain by sands, shell, silt, clays, and other less permeable sediments of the Hawthorn Group. The North Tract and the East Tract lie to the east of the point at which the Cody Escarpment becomes apparent. As a result, water tends to flow overland to wetlands and other surface water features. The Property The North and East Tracts are located in northern Marion County near the community of Fort McCoy. East Tract Topography and Historic Use The East Tract is located in the Daisy Creek Basin, and includes the headwaters of a small creek that drains directly to the Ocklawaha River. The historic use of the East Tract has been as a cleared 1,010-acre sod farm. The production of sod included irrigation, fertilization, and pest control. Little change in the topography, use, and appearance of the property will be apparent as a result of the permits at issue, but for the addition of grazing cattle. The current CUPs that are subject to modification in this proceeding authorize groundwater withdrawals for irrigation of the East Tract at the rate of 1.46 mgd. Since the proposed agency action has the result of reducing the maximum withdrawal from wells on the East Tract to 0.464 mgd, thus proportionately reducing the proposed impacts, there was little evidence offered to counter Sleepy Creek’s prima facie case that reasonable assurance was provided that the proposed East Tract groundwater withdrawal allocation will meet applicable CUP standards. There are no stormwater management structures to be constructed on the East Tract. Therefore, the ERP permit discussed herein is not applicable to the East Tract. North Tract Topography and Historic Use The North Tract has a generally flat topography, with elevations ranging from 45 feet to 75 feet above sea level. The land elevation is highest at the center of the North Tract, with the land sloping towards the Ocklawaha River to the east, and to several large wet prairie systems to the west. Surface water features on the North Tract include isolated, prairie, and slough-type wetlands on approximately 28 percent of the North Tract, and a network of creeks, streams, and ditches, including the headwaters of Mill Creek, a contributing tributary of the Ocklawaha River. A seasonal high groundwater elevation on the North Tract is estimated at 6 to 14 inches below ground surface. The existence of defined creeks and surface water features supports a finding that the North Tract is underlain by a relatively impermeable confining layer that impedes the flow of water from the surface and the shallow surficial aquifer to the upper Floridan and lower Floridan aquifers. If there was no confining unit, water going onto the surface of the property, either in the form of rain or irrigation water, would percolate unimpeded to the lower aquifers. Areas in the Ocala Uplift to the west of the North Tract, where the confining layer is thinner and discontiguous, contain few streams or runoff features. Historically, the North Tract was used for timber production, with limited pasture and crop lands. At the time the 7,207-acre North Tract was purchased by Sleepy Creek, land use consisted of 4,061 acres of planted pine, 1,998 acres of wetlands, 750 acres of improved pasture, 286 acres of crops, 78 acres of non-forested uplands, 20 acres of native forest, 10 acres of open water, and 4 acres of roads and facilities. Prior to the submission of the CUP and ERP applications, much of the planted pine was harvested, and the land converted to improved pasture. Areas converted to improved pasture include those proposed for irrigation, which have been developed in the circular configuration necessary for future use with center irrigation pivots. As a result of the harvesting of planted pine, and the conversion of about 345 acres of cropland and non-forested uplands to pasture and incidental uses, total acreage in pasture on the North Tract increased from 750 acres to 3,938 acres. Other improvements were constructed on the North Tract, including the cattle processing facility. Aerial photographs suggest that the conversion of the North Tract to improved pasture and infrastructure to support a cattle ranch is substantially complete. The act of converting the North Tract from a property dominated by planted pine to one dominated by improved pasture, and the change in use of the East Tract from sod farm to pasture, were agricultural activities that did not require a permit from the District. As such, there is no impropriety in considering the actual, legal use of the property in its current configuration as the existing use for which baseline conditions are to be measured. Petitioners argue that the baseline conditions should be measured against the use of the property as planted pine plantation, and that Sleepy Creek should not be allowed to “cattle-up” before submitting its permit applications, thereby allowing the baseline to be established as a higher impact use. However, the applicable rules and statutes provide no retrospective time-period for establishing the nature of a parcel of property other than that lawfully existing when the application is made. See West Coast Reg’l Water Supply Auth. v. SW Fla. Water Mgmt. Dist., Case No. 95-1520 et seq., ¶ 301 (Fla. DOAH May 29, 1997; SFWMD ) (“The baseline against which projected impacts conditions [sic] are those conditions, including previously permitted adverse impacts, which existed at the time of the filing of the renewal applications.”). The evidence and testimony in this case focused on the effects of the water allocation on the Floridan aquifer, Silver Springs, and the Silver River, and on the effects of the irrigation on water and nutrient transport from the properties. It was not directed at establishing a violation of chapter 373, the rules of the SJRWMD, or the CUP Applicant’s Handbook with regard to the use and management of the agriculturally-exempt unirrigated pastures, nor did it do so. Soil Types Soils are subject to classifications developed by the Soil Conservation Service based on their hydrologic characteristics, and are grouped into Group A, Group B, Group C, or Group D. Factors applied to determine the appropriate hydrologic soil group on a site-specific basis include depth to seasonal high saturation, the permeability rate of the most restrictive layer within a certain depth, and the depth to any impermeable layers. Group A includes the most well-drained soils, and Group D includes the most poorly-drained soils. Group D soils are those with seasonal high saturation within 24 inches of the soil surface and a higher runoff potential. The primary information used to determine the hydrologic soil groups on the North Tract was the depth to seasonal-high saturation, defined as the highest expected annual elevation of saturation in the soil. Depth to seasonal-high saturation was measured through a series of seven hand-dug and augered soil borings completed at various locations proposed for irrigation across the North Tract. In determining depth to seasonal-high saturation, the extracted soils were examined based on depth, color, texture, and other relevant characteristics. In six of the seven locations at which soil borings were conducted, a restrictive layer was identified within 36 inches of the soil surface. At one location at the northeastern corner of the North Tract, the auger hole ended at a depth of 48 inches -- the length of the auger -- at which depth there was an observable increase in clay content but not a full restrictive layer. However, while the soil assessment was ongoing, a back-hoe was in operation approximately one hundred yards north of the boring location. Observations of that excavation revealed a heavy clay layer at a depth of approximately 5 feet. In each of the locations, the depth to seasonal-high saturation was within 14 inches of the soil surface. Based on the consistent observation of seasonal-high saturation at each of the sampled locations, as well as the flat topography of the property with surface water features, the soils throughout the property, with the exception of a small area in the vicinity of Pivot 6, were determined to be in hydrologic soil Group D. Hydrogeologic Features There are generally five hydrogeologic units underlying the North Tract, those units being the surficial aquifer system, the intermediate confining unit, the upper Floridan aquifer, the middle confining unit, and the lower Floridan aquifer. In areas in which a confining layer is present, water falling on the surface of the land flows over the surface of the land or across the top of the confining layer. A surficial aquifer, with a relatively high perched water table, is created by the confinement and separation of surface waters from the upper strata of the Floridan aquifer. Surface waters are also collected in or conveyed by various surface water features, including perched wetlands, creeks, and streams. The preponderance of the evidence adduced at the final hearing demonstrates that the surficial aquifer exists on the property to a depth of up to 20 feet below the land surface (bls). Beneath the surficial aquifer is an intermediate confining unit of dense clay interspersed with beds of sand and calcareous clays that exists to a depth of up to 100 feet bls. The clay material observed on the North Tract is known as massive or structureless. Such clays are restrictive with very low levels of hydraulic conductivity, and are not conducive to development of preferential flow paths to the surficial or lower aquifers. The intermediate confining unit beneath the North Tract restricts the exchange of groundwater from the surficial aquifer to the upper Floridan aquifer. The upper Floridan aquifer begins at a depth of approximately 100 feet bls, and extends to a depth of approximately 340 feet bls. At about 340 feet bls, the upper Floridan aquifer transitions to the middle confining unit, which consists of finely grained, denser material that separates the interchange of water between the upper Floridan aquifer and the lower Floridan aquifer. Karst Features Karst features form as a result of water moving through rock that comprises the aquifer, primarily limestone, dissolving and forming conduits in the rock. Karst areas present a challenging environment to simulate through modeling. Models assume the subsurface to be a relatively uniform “sand box” through which it is easier to simulate groundwater flow. However, if the subsurface contains conduits, it becomes more difficult to simulate the preferential flows and their effect on groundwater flow paths and travel times. The District has designated parts of western Alachua County and western Marion County as a Sensitive Karst Area Basin. A Sensitive Karst Area is a location in which the porous limestone of the Floridan aquifer occurs within 20 feet of the land surface, and in which there is 10 to 20 inches of annual recharge to the Floridan aquifer. The designation of an area as being within the Sensitive Karst Area Basin does not demonstrate that it does, or does not, have subsurface features that are karstic in nature, or that would provide a connection between the surficial aquifer and the Floridan aquifer. The western portion of the North Tract is within the Sensitive Karst Area Basin. The two intensive-use areas on the North Tract that have associated stormwater facilities -- the cattle unloading area and the processing facility -- are outside of the Sensitive Karst Area Basin. The evidence was persuasive that karst features are more prominent to the west of the North Tract. In order to evaluate the presence of karst features on the North Tract, Mr. Andreyev performed a “desktop-type evaluation,” with a minimal field survey. The desktop review included a review of aerial photographs and an investigation of available data, including the Florida Geological Survey database of sinkhole occurrence in the area. The aerial photographs showed circular depressions suggestive of karst activity west and southwest of the North Tract, but no such depressions on the North Tract. Soil borings taken on the North Tract indicated the presence of layers of clayey sand, clays, and silts at a depth of 70 to 80 feet. Well-drilling logs taken during the development of the wells used for an aquifer performance test on the North Tract showed the limestone of the Floridan aquifer starting at a depth below ground surface of 70 to 80 feet. Other boring data generated on the North Tract suggests that there is greater than 100 feet of clay and sandy clay overburden above the Floridan aquifer on and in the vicinity of the North Tract. Regardless of site-specific differences, the observed confining layer separating the surficial aquifer from the Floridan aquifer is substantial, and not indicative of a karst environment. Aquifer performance tests performed on the North Tract were consistent in showing that drawdown in the surficial aquifer from the tests was minimal to non-detectable, which is strong evidence of an intact and low-permeability confining layer. The presence of well-developed drainage features on the North Tract is further evidence of a unit of confinement that is restricting water from going deeper into the subsurface, and forcing it to runoff to low-lying surface water features. Petitioners’ witnesses did not perform any site- specific analysis of karst features on or around the Sleepy Creek property. Their understanding of the nature of the karst systems in the region was described as “hypothetical or [] conceptual.” Dr. Kincaid admitted that he knew of no conduits on or adjacent to the North Tract. As a result of the data collected from the North Tract, Mr. Hearn opined that the potential for karst features on the property that provide an opening to the upper Floridan aquifer “is extremely remote.” Mr. Hearn’s opinion is consistent with the preponderance of the evidence in this case, and is accepted. In the event a surface karst feature were to manifest itself, Sleepy Creek has proposed that the surface feature be filled and plugged to reestablish the integrity of the confining layer. More to the point, the development of a surficial karst feature in an area influenced by irrigation would be sufficient grounds for the SJRWMD to reevaluate and modify the CUP to account for any changed conditions affecting the assumptions and bases for issuance of the CUP. Silver Springs, the Silver River, and the Ocklawaha River The primary, almost exclusive concern of Petitioners was the effect of the modified CUP and the nutrients from the proposed cattle ranch on Silver Springs, the Silver River, and the Ocklawaha River. Silver Springs Silver Springs has long been a well-known attraction in Florida. It is located just to the east of Ocala, Florida. Many of the speakers at the public comment period of this proceeding spoke fondly of having frequented Silver Springs over the years, enjoying its crystal clear waters through famous glass-bottomed boats. For most of its recorded history, Silver Springs was the largest spring by volume in Florida. Beginning in the 1970s, it began to lose its advantage, and by the year 2000, Rainbow Springs, located in southwestern Marion County, surpassed Silver Springs as the state’s largest spring. Silver Springs exists at the top of the potentiometric surface of the Floridan aquifer. Being at the “top of the mountain,” when water levels in the Floridan aquifer decline, groundwater flow favors the lower elevation springs. Thus, surrounding springshed boundaries expand to take more water to maintain their baseflows, at the expense of the Silver Springs springshed, which contracts. Rainbow Springs shares an overlapping springshed with Silver Springs. The analogy used by Dr. Knight was of the aquifer as a bucket with holes at different levels, and with the Silver Springs “hole” near the top of the bucket. When the water level in the bucket is high, water will flow from the top hole. As the water level drops below that hole, it will preferentially flow from the lower holes. Rainbow Springs has a vent or outlet from the aquifer, that is 10 feet lower in elevation than that of Silver Springs. Coastal springs are lower still. Thus, as groundwater levels decline, the lower springs “pirate flow” from the upper springs. Since the first major studies of Silver Springs were conducted in the 1950s, the ecosystem of Silver Springs has undergone changes. The water clarity, though still high as compared to other springs, has been reduced by 10 to 15 percent. Since the 1950s, macrophytic plants, i.e., rooted plants with seeds and flowers, have declined in population, while epiphytic and benthic algae have increased. Those plants are sensitive to increases in nitrogen in the water. Thus, Dr. Knight’s opinion that increases in nitrogen emerging from Silver Springs, calculated to have risen from just over 0.4 mg/l in the 1950s, to 1.1 mg/l in 2004, and to up to 1.5 mg/l at present,1/ have caused the observed vegetative changes is accepted. Silver River Silver Springs forms the headwaters for the Silver River, a spring run 5 1/2 miles in length, at which point it becomes a primary input to the Ocklawaha River. Issues of water clarity and alteration of the vegetative regime that exist at Silver Springs are also evident in the Silver River. In addition, the reduction in flow allows for more tannic water to enter the river, further reducing clarity. Dr. Dunn recognized the vegetative changes in the river, and opined that the “hydraulic roughness” caused by the increase in vegetation is likely creating a spring pool backwater at Silver Springs, thereby suppressing some of the flow from the spring. The Silver River has been designated as an Outstanding Florida Water. There are currently no Minimum Flows and Levels established by the District for the Silver River. Ocklawaha River The Ocklawaha River originates near Leesburg, Florida, at the Harris Chain of Lakes, and runs northward past Silver Springs. The Silver River is a major contributor to the flow of the Ocklawaha River. Due to the contribution of the Silver River and other spring-fed tributaries, the Ocklawaha River can take on the appearance of a spring run during periods of low rainfall. Historically, the Ocklawaha River flowed unimpeded to its confluence with the St. Johns River in the vicinity of Palatka, Florida. In the 1960s, as part of the Cross-Florida Barge Canal project, the Rodman Dam was constructed across the Ocklawaha River north of the Sleepy Creek property, creating a large reservoir known as the Rodman Pool. Dr. Knight testified convincingly that the Rodman Dam and Pool have altered the Ocklawaha River ecosystem, precipitating a decline in migratory fish populations and an increase in filamentous algae. At the point at which the Ocklawaha River flows past the Sleepy Creek property, it retains its free-flowing characteristics. Mill Creek, which has its headwaters on the North Tract, is a tributary of the Ocklawaha River. The Ocklawaha River, from the Eureka Dam south, has been designated as an Outstanding Florida Water. However, the Ocklawaha River at the point at which Mill Creek or other potential surface water discharges from the Sleepy Creek property might enter the river are not included in the Outstanding Florida Water designation. There are currently no Minimum Flows and Levels established by the District for the Ocklawaha River. The Silver Springs Springshed A springshed is that area from which a spring draws water. Unlike a surface watershed boundary, which is fixed based on land features, contours, and elevations, a springshed boundary is flexible, and changes depending on a number of factors, including rainfall. As to Silver Springs, its springshed is largest during periods of more abundant rainfall when the aquifer is replenished, and smaller during drier periods when groundwater levels are down, and water moves preferentially to springs and discharge points that are lower in elevation. The evidence in this case was conflicting as to whether the North Tract is in or out of the Silver Springs springshed boundary. Dr. Kincaid indicated that under some of the springshed delineations, part of the North Tract was out of the springshed, but over the total period of record, it is within the springshed. Thus, it was Dr. Kincaid’s opinion that withdrawals anywhere within the region will preferentially impact Silver Springs, though he admitted that he did not have the ability to quantify his opinion. Dr. Knight testified that the North Tract is within the Silver Springs “maximum extent” springshed at least part of the time, if not all the time. He did not opine as to the period of time in which the Silver Springs springshed was at its maximum extent. Dr. Bottcher testified that the North Tract is not within the Silver Springs springshed because there is a piezometric rise between North Tract and Silver Springs. Thus, in his opinion, withdrawals at the North Tract would not be withdrawing water going to Silver Springs. Dr. Dunn agreed that the North Tract is on the groundwater divide for Silver Springs. In his view, the North Tract is sometimes in, and sometimes out of the springshed depending on the potentiometric surface. In his opinion, the greater probability is that the North Tract is more often outside of the Silver Springs springshed, with seasonal and year—to—year variation. Dr. Dunn’s opinion provides the most credible explanation of the extent to which the North Tract sits atop that portion of the lower Floridan aquifer that feeds to Silver Springs. Thus, it is found that the groundwater divide exists to the south of the North Tract for a majority of the time, and water entering the Floridan aquifer from the North Tract will, more often than not, flow away from Silver Springs. Silver Springs Flow Volume The Silver Springs daily water discharge has been monitored and recorded since 1932. Over the longest part of the period of record, up to the 1960s, flows at Silver Springs averaged about 800 cubic feet per second (cfs). Through 1989, there was a reasonable regression between rainfall and springflow, based on average rainfalls. The long-term average rainfall in Ocala was around 50 inches per year, and long-term springflow was about 800 cfs, with deviations from average generally consistent with one another. Between 1990 and 1999, the relationship between rainfall and springflow declined by about 80 cubic feet per second. Thus, with average rainfall of 50 inches per year, the average springflow was reduced to about 720 cfs. From 2000 to 2009, there was an additional decline, such that the total cumulative decline for the 20-year period through 2009 was 250 cfs. Dr. Dunn agreed with Dr. Knight that after 2000, there was an abrupt and persistent reduction in flow of about 165 cfs. However, Dr. Dunn did not believe the post-2000 flow reduction could be explained by rainfall directly, although average rainfall was less than normal. Likewise, groundwater withdrawals did not offer an adequate explanation. Dr. Dunn described a natural 30-year cycle of wetter and drier periods known as the Atlantic Multidecadal Oscillation (AMO) that has manifested itself over the area for the period of record. From the 1940s up through 1970, the area experienced an AMO wet cycle with generally higher than normal rainfall at the Ocala rain station. For the next 30-year period, from 1970 up to 2000, the Ocala area ranged from a little bit drier to some years in which it was very, very dry. Dr. Dunn attributed the 80 cfs decline in Silver Springs flow recorded in the 1990s to that lower rainfall cycle. After 2000, when the next AMO cycle would be expected to build up, as it did post—1940, it did not happen. Rather, there was a particularly dry period around 2000 that Dr. Dunn believes to have had a dramatic effect on the lack of recovery in the post-2000 flows in the Silver River. According to Mr. Jenkins, that period of deficient rainfall extended through 2010. Around the year 2001, the relationship between rainfall and flow changed such that for a given amount of rainfall, there was less flow in the Silver River, with flow dropping to as low as 535 cfs after 2001. It is that reduction in flow that Dr. Knight has attributed to groundwater withdrawals. It should be noted that the observed flow of Silver Springs that formed the 1995 baseline conditions for the North Central Florida groundwater model that will be discussed herein was approximately 706 cfs. At the time of the final hearing in August 2014, flow at Silver Springs was 675 cfs. The reason offered for the apparent partial recovery was higher levels of rainfall, though the issue was not explored in depth. For the ten-year period centered on the year 2000, local water use within Marion and Alachua County, closer to Silver Springs, changed little -- around one percent per year. From a regional perspective, groundwater use declined at about one percent per year for the period from 1990 to 2010. The figures prepared by Dr. Knight demonstrate that the Sleepy Creek project area is in an area that has a very low density of consumptive use permits as compared to areas adjacent to Silver Springs and more clearly in the Silver Springs springshed. In Dr. Dunn’s opinion, there were no significant changes in groundwater use either locally or regionally that would account for the flow reduction in Silver Springs from 1990 to 2010. In that regard, the environmental report prepared by Dr. Dunn and submitted with the CUP modification application estimated that groundwater withdrawals accounted for a reduction in flow at Silver Springs of approximately 20 cfs as measured against the period of record up to the year 2000, with most of that reduction attributable to population growth in Marion County. In the March 2014, environmental impacts report, Dr. Dunn described reductions in the stream flow of not only the Silver River, but of other tributaries of the lower Ocklawaha River, including the upper Ocklawaha River at Moss Bluff and Orange Creek. However, an evaluation of the Ocklawaha River water balance revealed there to be additional flow of approximately 50 cfs coming into the Ocklawaha River at other stations. Dr. Dunn suggested that changes to the vent characteristics of Silver Springs, and the backwater effects of increased vegetation in the Silver River, have resulted in a redistribution of pressure to other smaller springs that discharge to the Ocklawaha River, accounting for a portion of the diminished flow at Silver Springs. The Proposed Cattle Operation Virtually all beef cattle raised in Florida, upon reaching a weight of approximately 875 pounds, are shipped to Texas or Kansas to be fattened on grain to the final body weight of approximately 1,150 pounds, whereupon they are slaughtered and processed. The United States Department of Agriculture has a certification for grass—fed beef which requires that, after an animal is weaned, it can only be fed on green forage crops, including grasses, and on corn and grains that are cut green and before they set seed. The forage crops may be grazed or put into hay or silage and fed when grass and forage is dormant. The benefit of grass feeding is that a higher quality meat is produced, with a corresponding higher market value. Sleepy Creek plans to develop the property as a grass- fed beef production ranch, with pastures and related loading/unloading and slaughter/processing facilities where calves can be fattened on grass and green grain crops to a standard slaughter weight, and then slaughtered and processed locally. By so doing, Sleepy Creek expects to save the transportation and energy costs of shipping calves to the Midwest, and to generate jobs and revenues by employing local people to manage, finish, and process the cattle. As they currently exist, pastures proposed for irrigation have been cleared and seeded, and have “fairly good grass production.” The purpose of the irrigation is to enhance the production and quality of the grass in order to maintain the quality and reliability of feed necessary for the production of grass-fed beef. East Tract Cattle Operation The East Tract is 1,242 acres in size, substantially all of which was previously cleared, irrigated, and used for sod production. The proposed CUP permit authorizes the irrigation of 611 acres of pasture under six existing center pivots. The remaining 631 acres will be used as improved, but unirrigated, pasture. Under the proposed permit, a maximum of 1,207 cattle would be managed on the East Tract. Of that number, 707 cattle would be grazed on the irrigated paddocks, and 500 cattle would be grazed on the unirrigated improved pastures. If the decision is made to forego irrigation on the East Tract, with the water allocation being used on the North Tract or not at all, the number of cattle grazed on the six center pivot pastures would be decreased from 707 cattle to 484 cattle. The historic use of the East Tract as a sod farm resulted in high phosphorus levels in the soil from fertilization, which has made its way to Daisy Creek. Sleepy Creek has proposed a cattle density substantially below that allowed by application of the formulae in the Nutrient Management Plan in order to “mine” the phosphorus levels in the soil over time. North Tract Cattle Operation The larger North Tract includes most of the “new” ranch activities, having no previous irrigation, and having been put to primarily silvicultural use with limited pasture prior to its acquisition by Sleepy Creek. The ranch’s more intensive uses, i.e., the unloading corrals and the slaughter house, are located on the North Tract. The North Tract is 7,207 acres in size. Of that, 1,656 acres are proposed for irrigation by means of 15 center- pivot irrigation systems. In addition to the proposed irrigated pastures, the North Tract includes 2,382 acres of unirrigated improved pasture, of which approximately 10 percent is wooded. Under the proposed permit, a maximum of 6,371 cattle would be managed on the North Tract. Of that number, 3,497 cattle would be grazed on the irrigated paddocks (roughly 2.2 head of cattle per acre), and 2,374 cattle would graze on the improved pastures (up to 1.1 head of cattle per acre). The higher cattle density in the irrigated pastures can be maintained due to the higher quality grass produced as a result of irrigation. The remaining 500 cattle would be held temporarily in high-concentration corrals, either after offloading or while awaiting slaughter. On average, there will be fewer than 250 head of cattle staged in those high-concentration corrals at any one time. In the absence of irrigation, the improved pasture on the North Tract could sustain about 4,585 cattle. Nutrient Management Plan, Water Conservation Plan, and BMPs The CUP and ERP applications find much of their support in the implementation of the Nutrient Management Plan (NMP), the Water Conservation Plan, and Best Management Practices (BMPs). The NMP sets forth information designed to govern the day to day operations of the ranch. Those elements of the NMP that were the subject of substantive testimony and evidence at the hearing are discussed herein. Those elements not discussed herein are found to have been supported by Sleepy Creek’s prima facie case, without a preponderance of competent and substantial evidence to the contrary. The NMP includes a herd management plan, which describes rotational grazing and the movement of cattle from paddock to paddock, and establishes animal densities designed to maintain a balance of nutrients on the paddocks, and to prevent overgrazing. The NMP establishes fertilization practices, with the application of fertilizer based on crop tissue analysis to determine need and amount. Thus, the application of nitrogen- based fertilizer is restricted to that capable of ready uptake by the grasses and forage crops, limiting the amount of excess nitrogen that might run off of the pastures or infiltrate past the root zone. The NMP establishes operation and maintenance plans that incorporate maintenance and calibration of equipment, and management of high-use areas. The NMP requires that records be kept of, among other things, soil testing, nutrient application, herd rotation, application of irrigation water, and laboratory testing. The irrigation plan describes the manner and schedule for the application of water during each irrigation cycle. Irrigation schedules for grazed and cropped scenarios vary from pivot to pivot based primarily on soil type. The center pivots proposed for use employ high-efficiency drop irrigation heads, resulting in an 85 percent system efficiency factor, meaning that there is an expected evaporative loss of 15 percent of the water before it becomes available as water in the soil. That level of efficiency is greater than the system efficiency factor of 80 percent established in CUP A.H. section 12.5.2. Other features of the irrigation plan include the employment of an irrigation manager, installation of an on-site weather station, and cumulative tracking of rain and evapotranspiration with periodic verification of soil moisture conditions. The purpose of the water conservation practices is to avoid over application of water, limiting over-saturation and runoff from the irrigated pastures. Sleepy Creek has entered into a Notice of Intent to Implement Water Quality BMPs with the Florida Department of Agriculture and Consumer Services which is incorporated in the NMP and which requires the implementation of Best Management Practices.2/ Dr. Bottcher testified that implementation and compliance with the Water Quality Best Management Practices manual creates a presumption of compliance with water quality standards. His testimony in that regard is consistent with Department of Agriculture and Consumer Services rule 5M-11.003 (“implementation, in accordance with adopted rules, of BMPs that have been verified by the Florida Department of Environmental Protection as effective in reducing target pollutants provides a presumption of compliance with state water quality standards.”). Rotational Grazing Rotational grazing is a practice by which cattle are allowed to graze a pasture for a limited period of time, after which they are “rotated” to a different pasture. The 1,656 acres proposed for irrigation on the North Tract are to be divided into 15 center-pivot pastures. Each individual pasture will have 10 fenced paddocks. The 611 acres of irrigated pasture on the East Tract are divided into 6 center-pivot pastures. The outer fence for each irrigated pasture is to be a permanent “hard” fence. Separating the internal paddocks will be electric fences that can be lowered to allow cattle to move from paddock to paddock, and then raised after they have moved to the new paddock. The NMP for the North Tract provides that cattle are to be brought into individual irrigated pastures as a single herd of approximately 190 cattle and placed into one of the ten paddocks. They will be moved every one to three days to a new paddock, based upon growing conditions and the reduction in grass height resulting from grazing. In this way, the cattle are rotated within the irrigated pasture, with each paddock being used for one to three days, and then rested until each of the other paddocks have been used, whereupon it will again be used in the rotation. The East Tract NMP generally provides for rotation based on the height of the pasture grasses, but is designed to provide a uniform average of cattle per acre per year. Due to the desire to “mine” phosphorus deposited during the years of operation of the East Tract as a sod farm, the density of cattle on the irrigated East Tract pastures is about 30 percent less than that proposed for the North Tract. The East Tract NMP calls for a routine pasture rest period of 15 to 30 days. Unlike dairy farm pastures, where dairy cows traverse a fixed path to the milking barn several times a day, there will be minimal “travel lanes” within the pastures or between paddocks. There will be no travel lanes through wetlands. If nitrogen-based fertilizer is needed, based upon tissue analysis of the grass, fertilizer is proposed for application immediately after a paddock is vacated by the herd. By so doing, the grass within each paddock will have a sufficient period to grow and “flush up” without grazing or traffic, which results in a high—quality grass when the cattle come back around to feed. Sleepy Creek proposes that rotational grazing is to be practiced on improved pastures and irrigated pastures alike. The rotational practices on the improved East Tract and North Tract pastures are generally similar to those practiced on the irrigated pastures. The paddocks will have permanent watering troughs, with one trough serving two adjacent paddocks. The troughs will be raised to prevent “boggy areas” from forming around the trough. Since the area around the troughs will be of a higher use, Sleepy Creek proposes to periodically remove accumulated manure, and re-grade if necessary. Other cattle support items, including feed bunkers and shade structures are portable and can be moved as conditions demand. Forage Crop Production The primary forage crop on the irrigated pastures is to be Bermuda grass. Bermuda grass or other grass types tolerant of drier conditions will be used in unirrigated pastures. During the winter, when Bermuda grass stops growing, Sleepy Creek will overseed the North Tract pastures with ryegrass or other winter crops. Due to the limitation on irrigation water, the East Tract NMP calls for no over-seeding for production of winter crops. Crops do not grow uniformly during the course of a year. Rather, there are periods during which there are excess crops, and periods during which the crops are not growing enough to keep up with the needs of the cattle. During periods of excess, Sleepy Creek will cut those crops and store them as haylage to be fed to the cattle during lower growth periods. The North Tract management plan allows Sleepy Creek to dedicate one or more irrigated pastures for the exclusive production of haylage. If that option is used, cattle numbers will be reduced in proportion to the number of pastures dedicated to haylage production. As a result of the limit on irrigation, the East Tract NMP does not recommend growing supplemental feed on dedicated irrigation pivot pastures. Direct Wetland Impacts Approximately 100 acres proposed for irrigation are wetlands or wetland buffer. Those areas are predominantly isolated wetlands, though some have surface water connections to Mill Creek, a water of the state. Trees will be cut in the wetlands to allow the pivot to pass overhead. Tree cutting is an exempt agricultural activity that does not require a permit. There was no persuasive evidence that cutting trees will alter the fundamental benefit of the wetlands or damage water resources of the District. The wetlands and wetland buffer will be subject to the same watering and fertigation regimen as the irrigated pastures. The application of water to wetlands, done concurrently with the application of water to the pastures, will occur during periods in which the pasture soils are dry. The incidental application of water to the wetlands during dry periods will serve to maintain hydration of the wetlands, which is considered to be a benefit. Fertilizers will be applied through the irrigation arms, a process known as fertigation. Petitioners asserted that the application of fertilizer onto the wetlands beneath the pivot arms could result in some adverse effects to the wetlands. However, Petitioners did not quantify to what extent the wetlands might be affected, or otherwise describe the potential effects. Fertigation of the wetlands will promote the growth of wetland plants. Nitrogen applied through fertigation will be taken up by plants, or will be subject to denitrification -- a process discussed in greater detail herein -- in the anaerobic wetland soils. The preponderance of the evidence indicated that enhanced wetland plant growth would not rise to a level of concern. Since most of the affected wetlands are isolated wetlands, there is expected to be little or no discharge of nutrients from the wetlands. Even as to those wetlands that have a surface water connection, most, if not all of the additional nitrogen applied through fertigation will be accounted for by the combined effect of plant uptake and denitrification. Larger wetland areas within an irrigated pasture will be fenced at the buffer line to prevent cattle from entering. The NMP provided a blow-up of the proposed fencing related to a larger wetland on Pivot 8. Although other figures are not to the same scale, it appears that larger wetlands associated with Pivots 1, 2, 3, and 12 will be similarly fenced. Cattle would be allowed to go into the smaller, isolated wetlands. Cattle going into wetlands do not necessarily damage the wetlands. Any damage that may occur is a function of density, duration, and the number of cattle. The only direct evidence of potential damage to wetlands was the statement that “[i]f you have 6,371 [cattle] go into a wetland, there may be impacts.” The NMP provides that pasture use will be limited to herds of approximately 190 cattle, which will be rotated from paddock to paddock every two to three days, and which will allow for “rest” periods of approximately 20 days. There will be no travel lanes through any wetland. Thus, there is no evidence to support a finding that the cattle at the density, duration, and number proposed will cause direct adverse effects to wetlands on the property. High Concentration Areas Cattle brought to the facility are to be unloaded from trucks and temporarily corralled for inspection. For that period, the cattle will be tightly confined. Cattle that have reached their slaughter weight will be temporarily held in corrals associated with the processing plant. The stormwater retention ponds used to capture and store runoff from the offloading corral and the processing plant holding corral are part of a normal and customary agricultural activity, and are not part of the applications and approvals that are at issue in this proceeding. The retention ponds associated with the high-intensity areas do not require permits because they do not exceed one acre in size or impound more than 40 acre-feet of water. Nonetheless, issues related to the retention ponds were addressed by Petitioners and Sleepy Creek, and warrant discussion here. The retention ponds are designed to capture 100 percent of the runoff and entrained nutrients from the high concentration areas for a minimum of a 24—hour/25—year storm event. If rainfall occurs in excess of the designed storm, the design is such that upon reaching capacity, only new surface water coming to the retention pond will be discharged, and not that containing high concentrations of nutrients from the initial flush of stormwater runoff. Unlike the stormwater retention berms for the pastures, which are to be constructed from the first nine inches of permeable topsoil on the property, the corral retention ponds are to be excavated to a depth of six feet which, based on soil borings in the vicinity, will leave a minimum of two to four feet of clay beneath the retention ponds. In short, the excavation will penetrate into the clay layer underlying the pond sites, but will not penetrate through that layer. The excavated clay will be used to form the side slopes of the ponds, lining the permeable surficial layer and generally making the ponds impermeable. Organic materials entering the retention ponds will form an additional seal. An organic seal is important in areas in which retention ponds are constructed in sandy soil conditions. Organic sealing is less important in this case, where clay forms the barrier preventing nutrients from entering the surficial aquifer. Although the organic material is subject to periodic removal, the clay layer will remain to provide the impermeable barrier necessary to prevent leakage from the ponds. Dr. Bottcher testified that if, during excavation of the ponds, it was found that the remaining in-situ clay layer was too thin, Sleepy Creek would implement the standard practice of bringing additional clay to the site to ensure adequate thickness of the liner. Nutrient Balance The goal of the NMP is to create a balance of nutrients being applied to and taken up from the property. Nitrogen and phosphorus are the nutrients of primary concern, and are those for which specific management standards are proposed. Nutrient inputs to the NMP consist generally of deposition of cattle manure (which includes solid manure and urine), recycling of plant material and roots from the previous growing season, and application of supplemental fertilizer. Nutrient outputs to the NMP consist generally of volatization of ammonia to the atmosphere, uptake and utilization of the nutrients by the grass and crops, weight gain of the cattle, and absorption and denitrification of the nutrients in the soil. The NMP, and the various models discussed herein, average the grass and forage crop uptake and the manure deposition to match that of a 1,013 pound animal. That average weight takes into account the fact that cattle on the property will range from calf weight of approximately 850 pounds, to slaughter weight of 1150 pounds. Nutrients that are not accounted for in the balance, e.g., those that become entrained in stormwater or that pass through the plant root zone without being taken up, are subject to runoff to surface waters or discharge to groundwater. Generally, phosphorus not taken up by crops remains immobile in the soil. Unless there is a potential for runoff to surface waters, the nutrient balance is limited by the amount of nitrogen that can be taken up by the crops. Due to the composition of the soils on the property, the high water table, and the relatively shallow confining layer, there is a potential for surface runoff. Thus, the NMP was developed using phosphorus as the limiting nutrient, which results in nutrient application being limited by the “P-index.” A total of 108 pounds of phosphorus per acre/per year can be taken up and used by the irrigated pasture grasses and forage crops. Therefore, the total number of cattle that can be supported on the irrigated pastures is that which, as a herd, will deposit an average of 108 pounds of phosphorus per year over the irrigated acreage. Therefore, Sleepy Creek has proposed a herd size and density based on calculations demonstrating that the total phosphorus contained in the waste excreted by the cattle equals the amount taken up by the crops. A herd producing 108 pounds per acre per year of phosphorus is calculated to produce 147 pounds of nitrogen per acre per year. The Bermuda grass and forage crops proposed for the irrigated fields require 420 pounds of nitrogen per acre per year. As a result of the nitrogen deficiency, additional nitrogen-based fertilizer to make up the shortfall is required to maintain the crops. Since phosphorus needs are accounted for by animal deposition, the fertilizer will have no phosphorus. The NMP requires routine soil and plant tissue tests to determine the amount of nitrogen fertilizer needed. By basing the application of nitrogen on measured rather than calculated needs, variations in inputs, including plant decomposition and atmospheric deposition, and outputs, including those affected by weather, can be accounted for, bringing the full nutrient balance into consideration. The numeric values for crop uptakes, manure deposition, and other estimates upon which the NMP was developed were based upon literature, values, and research performed and published by the University of Florida and the Natural Resource Conservation Service. Dr. Bottcher testified convincingly that the use of such values is a proven and reliable method of developing a balance for the operation of similar agricultural operations. A primary criticism of the NMP was its expressed intent to “reduce” or “minimize” the transport of nutrients to surface waters and groundwater, rather than to “negate” or “prevent” such transport. Petitioners argue that complete prevention of the transport of nutrients from the property is necessary to meet the standards necessary for issuance of the CUP and ERP. Mr. Drummond went into some detail regarding the total mass of nutrients expected to be deposited onto the ground from the cattle, exclusive of fertilizer application. In the course of his testimony, he suggested that the majority of the nutrients deposited on the land surface “are going to make it to the surficial aquifer and then be carried either to the Floridan or laterally with the groundwater flow.” However, Mr. Drummond performed no analysis on the fate of nitrogen through uptake by crops, volatization, or soil treatment, and did not quantify the infiltration of nitrogen to groundwater. Furthermore, he was not able to provide any quantifiable estimate on any effect of nutrients on Mill Creek, the Ocklawaha River, or Silver Springs. In light of the effectiveness of the nutrient balance and other elements of the NMP, along with the retention berm system that will be discussed herein, Mr. Drummond’s assessment of the nutrients that might be expected to impact water resources of the District is contrary to the greater weight of the evidence. Mr. Drummond’s testimony also runs counter to that of Dr. Kincaid, who performed a particle track analysis of the fate of water recharge from the North Tract. In short, Dr. Kincaid calculated that of the water that makes it as recharge from the North Tract to the surficial aquifer, less than one percent is expected to make its way to the upper Floridan aquifer, with that portion originating from the vicinity of Pivot 6. Recharge from the other 14 irrigated pastures was ultimately accounted for by evapotranspiration or emerged at the surface and found its way to Mill Creek. The preponderance of the competent, substantial evidence adduced at the final hearing supports the effectiveness of the NMPs for the North Tract and East Tract at managing the application and use of nutrients on the property, and minimizing the transport of nutrients to surface water and groundwater resources of the District. North Central Florida Model All of the experts involved in this proceeding agreed that the use of groundwater models is necessary to simulate what might occur below the surface of the ground. Models represent complex systems by applying data from known conditions and impacts measured over a period of years to simulate the effects of new conditions. Models are imperfect, but are the best means of predicting the effects of stresses on complex and unseen subsurface systems. The North Central Florida (NCF) model is used to simulate impacts of water withdrawals on local and regional groundwater levels and flows. The NCF model simulates the surficial aquifer, the upper Floridan aquifer, and the lower Floridan aquifer. Those aquifers are separated from one another by relatively impervious confining units. The intermediate confining unit separates the surficial aquifer from the upper Floridan aquifer. The intermediate confining unit is not present in all locations simulated by the NCF model. However, the evidence is persuasive that the intermediate confining unit is continuous at the North Tract, and serves to effectively isolate the surficial aquifer from the upper Floridan aquifer. The NCF model is not a perfect depiction of what exists under the land surface of the North Tract or elsewhere. It was, however, acknowledged by the testifying experts in this case, despite disagreements as to the extent of error inherent in the model, to be the best available tool for calculating the effects of withdrawals of water within the boundary of the model. The NCF model was developed and calibrated over a period of years, is updated routinely as data becomes available, and has undergone peer review. Aquifer Performance Tests In order to gather site-specific data regarding the characteristics of the aquifer beneath the Sleepy Creek property, a series of three aquifer performance tests (APTs) was conducted on the North Tract. The first two tests were performed by Sleepy Creek, and the third by the District. An APT serves to induce stress on the aquifer by pumping from a well at a high rate. By observing changes in groundwater levels in observation wells, which can be at varying distances from the extraction well, one can extrapolate the nature of the subsurface. In addition, well-completion reports for the various withdrawal and observation wells provide actual data regarding the composition of subsurface soils, clays, and features of the property. The APT is particularly useful in evaluating the ability of the aquifer to produce water, and in calculating the transmissivity of the aquifer. Transmissivity is a measure of the rate at which a substance passes through a medium and, as relevant to this case, measures how groundwater flows through an aquifer. The APTs demonstrated that the Floridan aquifer is capable of producing water at the rate requested. The APT drawdown contour measured in the upper Floridan aquifer was greater than that predicted from a simple run of the NCF model, but the lateral extent of the drawdown was less than predicted. The most reasonable conclusion to be drawn from the combination of greater than expected drawdown in the upper Floridan aquifer with less than expected extent is that the transmissivity of the aquifer beneath the North Tract is lower than the NCF model assumptions. The conclusion that the transmissivity of the aquifer at the North Tract is lower than previously estimated means that impacts from groundwater extraction would tend to be more vertical than horizontal, i.e., the drawdown would be greater, but would be more localized. As such, for areas of lower than estimated transmissivity, modeling would over-estimate off-site impacts from the extraction. NCF Modeling Scenarios The initial NCF modeling runs were based on an assumed withdrawal of 2.39 mgd, an earlier -- though withdrawn - - proposal. The evidence suggests that the simulated well placement for the 2.39 mgd model run was entirely on the North Tract. Thus, the results of the model based on that withdrawal have some limited relevance, especially given that the proposed CUP allows for all of the requested 1.46 mgd of water to be withdrawn from North Tract wells at the option of Sleepy Creek, but will over-predict impacts from the permitted rate of withdrawal. A factor that was suggested as causing a further over-prediction of drawdown in the 2.39 mgd model run was the decision, made at the request of the District, to exclude the input of data of additional recharge to the surficial aquifer, wetlands and surface waters from the irrigation, and the resulting diminution in soil storage capacity. Although there is some merit to the suggestion that omitting recharge made the model results “excessively conservative,” the addition of recharge to the model would not substantially alter the predicted impacts. A model run was subsequently performed based on a presumed withdrawal of 1.54 mgd, a rate that remains slightly more than, but still representative of, the requested amount of 1.46 mgd. The 1.54 mgd model run included an input for irrigation recharge. The simulated extraction points were placed on the East Tract and North Tract in the general configuration as requested in the CUP application. The NCF is designed to model the impacts of a withdrawal based upon various scenarios, identified at the hearing as Scenarios A, B, C, and D. Scenario A is the baseline condition for the NCF model, and represents the impacts of all legal users of water at their estimated actual flow rates as they existed in 1995. Scenario B is all existing users, not including the applicant, at end-of-permit allocations. Scenario C is all existing users, including the applicant, at current end-of-permit allocations. Scenario D is all permittees at full allocation, except the applicant which is modeled at the requested (i.e., new or modified) end-of-permit allocation. To simulate the effects of the CUP modification, simulations were performed on scenarios A, C, and D. In order to measure the specific impact of the modification of the CUP, the Scenario C impacts to the surficial, upper Floridan, and lower Floridan aquifers were compared with the Scenario D impacts to those aquifers. In order to measure the cumulative impact of the CUP, the Scenario A actual-use baseline condition was compared to the Scenario D condition which predicts the impacts of all permitted users, including the applicant, pumping at full end-of-permit allocations. The results of the NCF modeling indicate the following: 2.39 mgd - Specific Impact The surficial aquifer drawdown from the simulated 2.39 mgd withdrawal was less than 0.05 feet on-site and off- site, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The upper Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at between 0.30 and 0.12 feet on-site, and between 0.30 and 0.01 feet off-site. The higher off-site figures are immediately proximate to the property. The lower Floridan aquifer drawdown from the 2.39 mgd withdrawal was predicted at less than 0.05 feet at all locations, and at or less than 0.02 feet within six miles of the North Tract. 2.39 mgd - Cumulative Impact The cumulative impact to the surficial aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, was less than 0.05 feet on-site, and off-site to the north and east, except to the west of the North Tract, at which a drawdown of 0.07 feet was predicted. The cumulative impact to the upper Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 0.4 feet to 0.8 feet over all pertinent locations. The cumulative impact to the lower Floridan aquifer from all permitted users, including a 2.39 mgd Sleepy Creek withdrawal, ranged from 1.0 to 1.9 feet over all pertinent locations. The conclusion drawn by Mr. Andreyev that the predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals is supported by the evidence and accepted. 1.54 mgd - Specific Impact The NCF model runs based on the more representative 1.54 mgd withdrawal predicted a surficial aquifer drawdown of less than 0.01 feet (i.e., no drawdown contour shown) on the North Tract, and a 0.01 to 0.02 foot drawdown at the location of the East Tract. The drawdown of the upper Floridan aquifer from the CUP modification was predicted at up to 0.07 feet on the property, and generally less than 0.05 feet off-site. There were no drawdown contours at the minimum 0.01 foot level that came within 9 miles of Silver Springs. The lower Floridan aquifer drawdown from the CUP modification was predicted at less than 0.01 feet (i.e., no drawdown contour shown) at all locations. 1.54 mgd - Cumulative Impact A comparison of the cumulative drawdown contours for the 2.36 mgd model and 1.54 mgd model show there to be a significant decrease in predicted drawdowns to the surficial and upper Floridan aquifers, with the decrease in the upper Floridan aquifer drawdown being relatively substantial, i.e., from 0.5 to 0.8 feet on-site predicted for the 2.36 mgd withdrawal, to 0.4 to 0.5 feet on-site for the 1.54 mgd model. Given the small predicted individual impact of the CUP on the upper Floridan aquifer, the evidence is persuasive that the cumulative impacts are the result of other end-of-permit user withdrawals. The drawdown contour for the lower Floridan aquifer predicted by the 1.54 mgd model is almost identical to that of the 2.36 mgd model, thus supporting the conclusion that predicted impacts to the lower Floridan are almost entirely from other end-of-permit user withdrawals. Modeled Effect on Silver Springs As a result of the relocation of the extraction wells from the East Tract to the North Tract, the NCF model run at the 1.54 mgd withdrawal rate predicted springflow at Silver Springs to increase by 0.15 cfs. The net cumulative impact in spring flow as measured from 1995 conditions to the scenario in which all legal users, including Sleepy Creek, are pumping at full capacity at their end-of-permit rates for one year3/ is roughly 35.4 cfs, which is approximately 5 percent of Silver Springs’ current flow. However, as a result of the redistribution of the Sleepy Creek withdrawal, which is, in its current iteration, a legal and permitted use, the cumulative effect of the CUP modification at issue is an increase in flow of 0.l5 cfs. Dr. Kincaid agreed that there is more of an impact to Silver Springs when the pumping allowed by the CUP is located on the East Tract than there is on the North Tract, but that the degree of difference is very small. Dr. Knight testified that effect on the flow of Silver Springs from relocating the 1.46 mgd withdrawal from the East Tract to the North Tract would be “zero.” The predicted increase of 0.15 cfs is admittedly miniscule when compared to the current Silver Springs springflow of approximately 675 cfs. However, as small as the modeled increase may be -- perhaps smaller than its “level of certainty” -- it remains the best evidence that the impact of the CUP modification to the flow of Silver Springs will be insignificant at worst, and beneficial at best. Opposition to the NCF Model Petitioners submitted considerable evidence designed to call the results generated by the District’s and Sleepy Creek’s NCF modeling into question. Karst Features A primary criticism of the validity of the NCF model was its purported inability to account for the presence of karst features, including conduits, and their effect on the results. It was Dr. Kincaid’s opinion that the NCF model assigned transmissivity values that were too high, which he attributed to the presence of karst features that are collecting flow and delivering it to springs. He asserted that, instead of assuming the presence of karst features, the model was adjusted to raise the overall capacity of the porous medium to transmit water, and thereby match the observed flows. In his opinion, the transmissivity values of the equivalent porous media were raised so much that the model can no longer be used to predict drawdowns. That alleged deficiency in the model is insufficient for two reasons. First, as previously discussed in greater detail, the preponderance of the evidence in this case supports a finding that there are no karst features in the vicinity of the North Tract that would provide preferential pathways for water flow so as to skew the results of the NCF model. Second, Dr. Kincaid, while acknowledging that the NCF model is the best available tool for predicting impacts from groundwater extraction on the aquifer, suggested that a hybrid porous media and conduit model would be a better means of predicting impacts, the development of which would take two years or more. There is no basis for the establishment of a de facto moratorium on CUP permitting while waiting for the development of a different and, in this case, unnecessary model. For the reasons set forth herein, it is found that the NCF model is sufficient to accurately and adequately predict the effects of the Sleepy Creek groundwater withdrawals on the aquifers underlying the property, and to provide reasonable assurance that the standards for such withdrawals have been met. Recharge to the Aquifer Petitioners argued that the modeling results showing little significant drawdown were dependent on the application of unrealistic values for recharge or return flow from irrigation. In a groundwater model, as in the physical world, some portion of the water extracted from the aquifer is predicted to be returned to the aquifer as recharge. If more water is applied to the land surface than is being accounted for by evaporation, plant uptake and evapotranspiration, surface runoff, and other processes, that excess water may seep down into the aquifer as recharge. Recharge serves to replenish the aquifer and offset the effects of the groundwater withdrawal. Dr. Kincaid opined that the NCF modeling performed for the CUP application assigned too much water from recharge, offsetting the model's prediction of impacts to other features. It is reasonable to assume that there is some recharge associated with both agricultural and public supply uses. However, the evidence suggests that the impact of recharge on the overall NCF model results is insignificant on the predicted impacts to Silver Springs, the issue of primary concern. Mr. Hearn ran a simulation using the NCF model in which all variables were held constant, except for recharge. The difference between the “with recharge” and “without recharge" simulations at Silver Springs was 0.002 cfs. That difference is not significant, and is not suggestive of adverse impacts on Silver Springs from the CUP modification. Dr. Kincaid testified that “the recharge offset on the property is mostly impacting the surficial aquifer,” and that “the addition of recharge in this case didn't have much of an impact on the upper Floridan aquifer system.” As such, the effect of adding recharge to the model would be as to the effect of groundwater withdrawal on wetlands or surface water bodies, and not on springs. As previously detailed, the drawdown of the surficial aquifer simulated for the 2.39 mgd “no recharge” scenario were less than 0.05 feet on-site and off-site, except for a predicted 0.07 foot drawdown to the west of the North Tract. The predicted drawdown of the surficial aquifer for the 1.54 mgd “with recharge” scenario was 0.02 feet or less. The preponderance of the evidence supports a finding that drawdowns of either degree are less than that at which adverse impacts to wetlands or surface waters would occur. Thus, issues related to the recharge or return flows from irrigation are insufficient to support a finding or conclusion that the NCF model failed to provide reasonable assurance that the standards for issuance of the CUP modification were met. External Boundaries The boundaries of the NCF model are not isolated from the rest of the physical world. Rather, groundwater flows into the modeled area from multiple directions, and out of the modeled area in multiple directions. Inflows to the model area are comprised of recharge, which is an assigned value, and includes water infiltrating and recharging the aquifer from surface waters; injection wells; upward and downward leakage from lower aquifers; and flow across the external horizontal boundaries. Outflows from the model area include evapotranspiration; discharge to surface waters, including springs and rivers; extraction from wells; upward and downward leakage from lower aquifers; and flow against the external model boundaries. Dr. Kincaid testified that flow across the external model boundary is an unknown and unverifiable quantity which increases the uncertainty in the model. He asserted that in the calibrated version of the model, there is no way to check those flows against data. His conclusion was that the inability of the NCF model to accurately account for external boundary flow made the margin of error so great as to make the model an unreliable tool with which to assess whether the withdrawal approved by the proposed CUP modification will increase or decrease drawdown at Silver Springs. The District correlates the NCF model boundaries with a much larger model developed by the United States Geological Survey, the Peninsula of Florida Model, more commonly referred to as the Mega Model, which encompasses most of the State of Florida and part of Southeast Georgia. The Mega Model provides a means to acknowledge that there are stresses outside the NCF model, and to adjust boundary conditions to account for those stresses. The NCF is one of several models that are subsets of the Mega Model, with the grids of the two models being “nested” together. The 1995 base year of the NCF model is sufficiently similar to the 1993-1994 base year of the Mega Model as to allow for a comparison of simulated drawdowns calculated by each of the models. By running a Mega Model simulation of future water use, and applying the change in that use from 1993 base year conditions, the District was able to come to a representative prediction of specific boundary conditions for the 1995 NCF base year, which were then used as the baseline for simulations of subsequent conditions. In its review of the CUP modification, the District conducted a model validation simulation to measure the accuracy of the NCF model against observed conditions, with the conditions of interest being the water flow at Silver Springs. The District ran a simulation using the best information available as to water use in the year 2010, the calculated boundary conditions, irrigation, pumping, recharge, climatic conditions, and generally “everything that we think constitutes that year.” The discharge of water at Silver Springs in 2010 was measured at 580 cfs. The discharge simulated by the NCF model was 545 cfs. Thus, the discharge predicted by the NCF model simulation was within six percent of the observed discharge. Such a result is generally considered in the modeling community to be “a home run.” Petitioners’ objections to the calculation of boundary conditions for the NCF model are insufficient to support a finding that the NCF model is not an appropriate and accurate tool for determining that reasonable assurance has been provided that the standards for issuance of the CUP modification were met. Cumulative Impact Error As part of the District’s efforts to continually refine the NCF, and in conjunction with a draft minimum flows and levels report for Silver Springs and the Silver River, the cumulative NCF model results for the period of baseline to 2010 were compared with the simulated results from the Northern District Model (NDF), a larger model that overlapped the NCF. As a result of the comparison, which yielded different results, it was discovered that the modeler had “turned off” not only the withdrawal pumps, but inputs to the aquifer from drainage wells and sinkholes as well. When those inputs were put back into the model run, and effects calculated only from withdrawals between the “pumps-off” condition and 2010 pumping conditions, the cumulative effect of the withdrawals was adjusted from a reduction in the flow at Silver Springs of 29 cfs to a reduction of between 45 and 50 cfs, an effect described as “counterintuitive.” Although that result has not undergone peer review, and remains subject to further review and comparison with the Mega Model, it was accepted by the District representative, Mr. Bartol. Petitioners seized upon the results of the comparison model run as evidence of the inaccuracy and unreliability of the NCF model. However, the error in the NCF model run was not the result of deficiencies in the model, but was a data input error. Despite the error in the estimate of the cumulative effect of all users at 2010 levels, the evidence in this case does not support a finding that the more recent estimates of specific impact from the CUP at issue were in error. NCF Model Conclusion As has been discussed herein, a model is generally the best means by which to calculate conditions and effects that cannot be directly observed. The NCF model is recognized as being the best tool available for determining the subsurface conditions of the model domain, having been calibrated over a period of years and subject to peer review. It should be recognized that the simulations run using the NCF model represent the worst—case scenario, with all permittees simultaneously drawing at their full end-of-permit allocations. There is merit to the description of that occurrence as being “very remote.” Thus, the results of the modeling represent a conservative estimate of potential drawdown and impacts. While the NCF model is subject to uncertainty, as is any method of predicting the effects of conditions that cannot be seen, the model provides reasonable assurance that the conditions simulated are representative of the conditions that will occur as a result of the withdrawals authorized by the CUP modification. Environmental Resource Permit The irrigation proposed by the CUP will result in runoff from the North Tract irrigated pastures in excess of that expected from the improved pastures, due in large measure to the diminished storage capacity of the soil. Irrigation water will be applied when the soils are dry, and capable of absorbing water not subject to evaporation or plant uptake. The irrigation water will fill the storage space that would exist without irrigation. With irrigation water taking up the capacity of the soil to hold water, soils beneath the irrigation pivots will be less capable of retaining additional moisture during storm events. Thus, there is an increased likelihood of runoff from the irrigated pastures over that expected with dry soils. The increase in runoff is expected to be relatively small, since there should be little or no irrigation needed during the normal summer wet season. The additional runoff may have increased nutrient levels due to the increased cattle density made possible by the irrigation of the pastures. The CUP has a no—impact requirement for water quality resulting from the irrigation of the improved pasture. Thus, nutrients leaving the irrigated pastures may not exceed those calculated to be leaving the existing pre-development use as improved pastures. Retention Berms The additional runoff and nutrient load is proposed to be addressed by constructing a system of retention berms, approximately 50,0004/ feet in length, which is intended to intercept, retain, and provide treatment for runoff from the irrigated pasture. The goal of the system is to ensure that post—development nutrient loading from the proposed irrigated pastures will not exceed the pre—development nutrient loading from the existing improved pastures. An ERP permit is required for the construction of the berm system, since the area needed for the construction of the berms is greater than the one acre in size, and since the berms have the capability of impounding more than 40 acre-feet of water. The berms are to be constructed by excavating the top nine inches of sandy, permeable topsoil and using that permeable soil to create the berms, which will be 1 to 2 feet in height. The water storage areas created by the excavation will have flat or horizontal bottoms, and will be very shallow with the capacity to retain approximately a foot of water. The berms will be planted with pasture grasses after construction to provide vegetative cover. The retention berm system is proposed to be built in segments, with the segment designed to capture runoff from a particular center pivot pasture to be constructed prior to the commencement of irrigation from that center pivot. A continuous clay layer underlies the areas in which the berms are to be constructed. The clay layer varies from 18 to 36 inches below the ground surface, with at least one location being as much as five feet below the ground surface. As such, after nine inches of soil is scraped away to create the water retention area and construct the berm, there will remain a layer of permeable sandy material above the clay. The berms are to be constructed at least 25 feet landward of any jurisdictional wetland, creating a “safe upland line.” Thus, the construction, operation, and maintenance of the retention berms and redistribution swales will result in no direct impacts to jurisdictional wetlands or other surface waters. There will be no agricultural activities, e.g., tilling, planting, or mowing, within the 25-foot buffers, and the buffers will be allowed to establish with native vegetation to provide additional protection for downgradient wetlands. As stormwater runoff flows from the irrigated pastures, it may, in places, create concentrated flow ways. Redistribution swales will be built in those areas to spread any remaining overland flow of water and reestablish sheet flow to the retention berm system. At any point at which water may overtop a berm, the berm will be hardened with rip—rap to insure its integrity. The berms are designed to intercept and collect overland flow from the pastures and temporarily store it behind the berms, regaining the soil storage volume lost through irrigation. A portion of the runoff intercepted by the berm system will evaporate. The majority will infiltrate either through the berm, or vertically into the subsurface soils beneath it. When the surficial soils become saturated, further vertical movement will be stopped by the impermeable clay layer underlying the site. The runoff water will then move horizontally until it reemerges into downstream wetland systems. Thus, the berm system is not expected to have a measurable impact on the hydroperiod of the wetlands on the North Tract. Phosphorus Removal Phosphorus tends to get “tied up” in soil as it moves through it. Phosphorus reduction occurs easily in permeable soil systems because it is removed from the water through a chemical absorption process that is not dependent on the environment of the soil. As the soils in the retention areas and berms go through drying cycles, the absorption capacity is regenerated. Thus, the retention system will effectively account for any increase in phosphorus resulting from the increased cattle density allowed by the irrigation such that there is expected to be no increase in phosphorus levels beyond the berm. Nitrogen Removal When manure is deposited on the ground, primarily as high pH urine, the urea is quickly converted to ammonia, which experiences a loss of 40 to 50 percent of the nitrogen to volatization. Soil conditions during dry weather conditions are generally aerobic. Remaining ammonia in the manure is converted by aerobic bacteria in the soil to nitrates and nitrites. Converted nitrates and nitrites from manure, along with nitrogen from fertilizer, is readily available for uptake as food by plants, including grasses and forage crops. Nitrates and nitrites are mobile in water. Therefore, during rain events of sufficient intensity to create runoff, the nitrogen can be transported downstream towards wetlands and other receiving waters, or percolate downward through the soil until blocked by an impervious barrier. During storm events, the soils above the clay confining layer and the lower parts of the pervious berms become saturated. Those saturated soils are drained of oxygen and become anaerobic. When nitrates and nitrites encounter saturated conditions, they provide food for anaerobic bacteria that exist in those conditions. The bacteria convert nitrates and nitrites to elemental nitrogen, which has no adverse impact on surface waters or groundwater. That process, known as denitrification, is enhanced in the presence of organic material. The soils from which the berms are constructed have a considerable organic component. In addition to the denitrification that occurs in the saturated conditions in and underlying the berms, remaining nitrogen compounds that reemerge into the downstream wetlands are likely to encounter organic wetland-type soil conditions. Organic wetland soils are anaerobic in nature, and will result in further, almost immediate denitrification of the nitrates and nitrites in the emerging water. Calculation of Volume - BMPTRAINS Model The calculation of the volume necessary to capture and store excess runoff from the irrigated pastures was performed by Dr. Wanielista using the BMPTRAINS model. BMPTRAINS is a simple, easy to use spreadsheet model. Its ease of use does not suggest that it is less than reliable. The model has been used as a method of calculating storage volumes in many conditions over a period of more than 40 years. The model was used to calculate the storage volumes necessary to provide storage and treatment of runoff from fifteen “basins” that had a control or a Best Management Practice associated with them. All of the basins were calculated as being underlain by soils in poorly-drained hydrologic soil Group D, except for the basin in the vicinity of Pivot 6, which is underlain by the more well-drained soil Group A. The model assumed about percent of the property to have soil Group A soils, an assumption that is supported by the evidence. Soil moisture conditions on the property were calculated by application of data regarding rainfall events and times, the irrigation schedule, and the amount of irrigation water projected for use over a year. The soil moisture condition was used to determine the amount of water that could be stored in the on-site soils, known as the storage coefficient. Once the storage coefficient was determined, that data was used to calculate the amount of water that would be expected to run off of the North Tract, known as the curve number. The curve number is adjusted by the extent to which the storage within a soil column is filled by the application of irrigation water, making it unable to store additional rainfall. As soil storage goes down, the curve number goes up. Thus, a curve number that approaches 100 means that more water is predicted to run off. Conversely, a lower curve number means that less water is predicted to run off. The pre-development curve number for the North Tract was based on the property being an unirrigated, poor grass area. A post-development curve number was assigned to the property that reflected a wet condition representative of the irrigated soils beneath the pivots. In calculating the storage volume necessary to handle runoff from the basins, the wet condition curve number was adjusted based on the fact that there is a mixture of irrigated and unirrigated general pasture within each basin to be served by a segment of the retention berm system, and by the estimated 15 percent of the time that the irrigation areas would be in a drier condition. In addition, the number was adjusted to reflect the 8 to 10 inches of additional evapotranspiration that occurs as a result of irrigation. The BMPTRAINS model was based on average annual nutrient-loading conditions, with water quality data collected at a suitable point within Reach 22, the receiving waterbody. The effects of nutrients from the irrigated pastures on receiving waterbodies is, in terms of the model, best represented by average annual conditions, rather than a single highest-observed nutrient value. Pre-development loading figures were based on the existing use of the property as unirrigated general pasture. The pre-development phosphorus loading figure was calculated at an average event mean concentration (EMC) of 0.421 milligrams per liter (mg/l). The post—condition phosphorus loading figure was calculated at an EMC of 0.621 mg/l. Therefore, in order to achieve pre-development levels of phosphorus, treatment to achieve a reduction in phosphorus of approximately 36 percent was determined to be necessary. The pre-development nitrogen loading figure was calculated at an EMC of 2.6 mg/l. The post—condition nitrogen loading figure was calculated at an EMC of 3.3 mg/l. Therefore, in order to achieve pre-development levels of nitrogen, treatment to achieve a reduction in nitrogen of approximately 25 percent was determined to be necessary. The limiting value for the design of the retention berms is phosphorus. To achieve post-development concentrations that are equal to or less than pre-development concentrations, the treatment volume of the berm system must be sufficient to allow for the removal of 36 percent of the nutrients in water being retained and treated behind the berms, which represents the necessary percentage of phosphorus. In order to achieve the 36 percent reduction required for phosphorus, the retention berm system must be capable of retaining approximately 38 acre—feet of water from the 15 basins. In order to achieve that retention volume, a berm length of approximately 50,000 linear feet was determined to be necessary, with an average depth of retention behind the berms of one foot. The proposed length of the berms is sufficient to retain the requisite volume of water to achieve a reduction in phosphorus of 36 percent. Thus, the post-development/irrigation levels of phosphorus from runoff are expected to be no greater than pre-development/general pasture levels of phosphorus from runoff. By basing the berm length and volume on that necessary for the treatment of phosphorus, there will be storage volume that is greater than required for a 25 percent reduction in nitrogen. Thus, the post-development/irrigation levels of nitrogen from runoff are expected to be less than pre- development/general pasture levels of nitrogen from runoff. Mr. Drummond admitted that the design of the retention berms “shows there is some reduction, potentially, but it's not going to totally clean up the nutrients.” Such a total clean-up is not required. Rather, it is sufficient that there is nutrient removal to pre-development levels, so that there is no additional pollutant loading from the permitted activities. Reasonable assurance that such additional loading is not expected to occur was provided. Despite Mr. Drummond’s criticism of the BMPTRAINS model, he did not quantify nutrient loading on the North Tract, and was unable to determine whether post-development concentrations of nutrients would increase over pre-development levels. As such, there was insufficient evidence to counter the results of the BMPTRAINS modeling. Watershed Assessment Model In order to further assess potential water quantity and water quality impacts to surface water bodies, and to confirm stormwater retention area and volume necessary to meet pre-development conditions, Sleepy Creek utilized the Watershed Assessment Model (WAM). The WAM is a peer-reviewed model that is widely accepted by national, state, and local regulatory entities. The WAM was designed to simulate water balance and nutrient impacts of varying land uses. It was used in this case to simulate and provide a quantitative measure of the anticipated impacts of irrigation on receiving water bodies, including Mill Creek, Daisy Creek, the Ocklawaha River, and Silver Springs. Inputs to the model include land conditions, soil conditions, rain and climate conditions, and water conveyance systems found on the property. In order to calculate the extent to which nutrients applied to the land surface might affect receiving waters, a time series of surface water and groundwater flow is “routed” through the modeled watershed and to the various outlets from the system, all of which have assimilation algorithms that represent the types of nutrient uptakes expected to occur as water goes through the system. Simulations were performed on the North Tract in its condition prior to acquisition by Sleepy Creek, in its current “exempted improved pasture condition,” and in its proposed “post—development” pivot-irrigation condition. The simulations assessed impacts of the site conditions on surface waters at the point at which they leave the property and discharge to Mill Creek, and at the point where Mill Creek merges into the Ocklawaha River. The baseline condition for measuring changes in nutrient concentrations was determined to be that lawfully existing at the time the application was made. Had there been any suggestion of illegality or impropriety in Sleepy Creek’s actions in clearing the timber and creating improved pasture, a different baseline might be warranted. However, no such illegality or impropriety was shown, and the SJRWMD rules create no procedure for “looking back” to previous land uses and conditions that were legally changed. Thus, the “exempted improved pasture condition” nutrient levels are appropriate for comparison with irrigated pasture nutrient levels. The WAM simulations indicated that nitrogen resulting from the irrigation of the North Tract pastures would be reduced at the outflow to Mill Creek at the Reach 22 stream segment from improved pasture levels by 1.7 percent in pounds per year, and by 0.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 1.3 percent in pounds per year, and 0.5 percent in milligrams per liter of water. These levels are small, but nonetheless support a finding that the berm system is effective in reducing nitrogen from the North Tract. Furthermore, the WAM simulations showed levels of nitrogen from the irrigated pasture after the construction of the retention berms to be reduced from that present in the pre- development condition, a conclusion consistent with that derived from the BMPTRAINS model. The WAM simulations indicated that phosphorus from the irrigated North Tract pastures, measured at the outflow to Mill Creek at the Reach 22 stream segment, would be reduced from improved pasture levels by 3.7 percent in pounds per year, and by 2.6 percent in milligrams per liter of water. The model simulations predicted a corresponding reduction at the Mill Creek outflow to the Ocklawaha River of 2.5 percent in pounds per year, and 1.6 percent in milligrams per liter of water. Those levels are, again, small, but supportive of a finding of no impact from the permitted activities. The WAM simulations showed phosphorus in the Ocklawaha River at the Eureka Station after the construction of the retention berms to be slightly greater than those simulated for the pre-development condition (0.00008 mg/l) -- the only calculated increase. That level is beyond miniscule, with impacts properly characterized as “non- measurable” and “non-detectable.” In any event, total phosphorus remains well below Florida’s nutrient standards. The WAM simulations were conducted based on all of the 15 pivots operating simultaneously at full capacity. That amount is greater than what is allowed under the permit. Thus, according to Dr. Bottcher, the predicted loads are higher than those that would be generated by the permitted allocation, making his estimates “very conservative.” Dr. Bottcher’s testimony is credited. During the course of the final hearing, the accuracy of the model results was questioned based on inaccuracies in rainfall inputs due to the five-mile distance of the property from the nearest rain station. Dr. Bottcher admitted that given the dynamics of summer convection storms, confidence that the rain station rainfall measurements represent specific conditions on the North Tract is limited. However, it remains the best data available. Furthermore, Dr. Bottcher testified that even if specific data points simulated by the model differ from that recorded at the rain station, that same error carries through each of the various scenarios. Thus, for the comparative purpose of the model, the errors get “washed out.” Other testimony regarding purported inaccuracies in the WAM simulations and report were explained as being the result of errors in the parameters used to run alternative simulations or analyze Sleepy Creek’s simulations, including use of soil types that are not representative of the North Tract, and a misunderstanding of dry weight/wet weight loading rates. There was agreement among witnesses that the WAM is regarded, among individuals with expertise in modeling, as an effective tool, and was the appropriate model for use in the ERP application that is the subject of this proceeding. As a result, the undersigned accepts the WAM simulations as being representative of comparative nutrient impacts on receiving surface water bodies resulting from irrigation of the North Tract. The WAM confirmed that the proposed retention berm system will be sufficient to treat additional nutrients that may result from irrigation of the pastures, and supports a finding of reasonable assurance that water quality criteria will be met. With regard to the East Tract, the WAM simulations showed that there would be reductions in nitrogen and phosphorus loading to Daisy Creek from the conversion of the property to irrigated pasture. Those simulations were also conservative because they assumed the maximum number of cattle allowed by the nutrient balance, and did not assume the 30 percent reduction in the number of cattle under the NMP so as to allow existing elevated levels of phosphorus in the soil from the sod farm to be “mined” by vegetation. Pivot 6 The evidence in this case suggests that, unlike the majority of the North Tract, a small area on the western side of the North Tract drains to the west and north. Irrigation Pivot is within that area. Dr. Harper noted that there are some soils in hydrologic soil Group A in the vicinity of Pivot 6 that reflect soils with a deeper water table where rainfall would be expected to infiltrate into the ground. Dr. Kincaid’s particle track analysis suggested that recharge to the surficial aquifer ultimately discharges to Mill Creek, except for recharge at Pivot 11, which is accounted for by evapotranspiration, and recharge at Pivot 6. Dr. Kincaid concluded that approximately 1 percent of the recharge to the surficial aquifer beneath the North Tract found its way into the upper Floridan aquifer. Those particle tracks originated only on the far western side of the property, and implicated only Pivot 6, which is indicative of the flow divide in the Floridan aquifer. Of the 1 percent of particle tracks entering the Floridan aquifer, some ultimately discharged at the St. John’s River, the Ocklawaha River, or Mill Creek. Dr. Kincaid opined, however, that most ultimately found their way to Silver Springs. Given the previous finding that the Floridan aquifer beneath the property is within the Silver Springs springshed for less than a majority of the time, it is found that a correspondingly small fraction of the less than 1 percent of the particle tracks originating on the North Tract, perhaps a few tenths of one percent, can reach Silver Springs. Dr. Bottcher generally agreed that some small percentage of the water from the North Tract may make it to the upper Floridan aquifer, but that amount will be very small. Furthermore, that water reaching the upper Floridan aquifer would have been subject to the protection and treatment afforded by the NMP and the ERP berms. The evidence regarding the somewhat less restrictive confinement of the aquifer around Pivot 6 is not sufficient to rebut the prima facie case that the CUP modification, coupled with the ERP, will meet the District’s permitting standards. Public Interest The primary basis upon which Sleepy Creek relies to demonstrate that the CUP is “consistent with the public interest” is that Florida's economy is highly dependent upon agricultural operations in terms of jobs and economic development, and that there is a necessity of food production. Sleepy Creek could raise cattle on the property using the agriculturally-exempt improved pastures, but the economic return on the investment would be questionable without the increased quality, quantity, and reliability of grass and forage crop production resulting from the proposed irrigation. Sleepy Creek will continue to engage in agricultural activities on its properties if the CUP modification is denied. Although a typical Florida beef operation could be maintained on the property, the investment was based upon having the revenue generation allowed by grass-fed beef production in order to realize a return on its capital investment and to optimize the economic return. If the CUP modification is denied, the existing CUP will continue to allow the extraction of 1.46 mgd for use on the East Tract. The preponderance of the evidence suggests that such a use would have greater impacts on the water levels at Silver Springs, and that the continued use of the East Tract as a less stringently-controlled sod farm would have a greater likelihood of higher nutrient levels, particularly phosphorus levels which are already elevated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the St. Johns River Water Management District enter a final order: approving the issuance of Consumptive Use Permit No. 2-083-91926-3 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Permit Application for Consumptive Uses of Water and the Consumptive Use Technical Staff Report; and approving the issuance of Environmental Resource Permit No. IND-083-130588-4 to Sleepy Creek Lands, LLC on the terms and conditions set forth in the complete Joint Application for Individual and Conceptual Environmental Resource Permit and the Individual Environmental Resource Permit Technical Staff Report. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 29th day of April, 2015.
The Issue The issue is whether Respondent HBJ Investments, Inc. is entitled to an environmental resource permit to facilitate the construction of the Betty Jones Spa on property adjacent to property owned by Petitioner.
Findings Of Fact On November 17, 1998, Respondent HBJ Investments, Inc. (Applicant) filed an application (Application) with the South Florida Water Management District (District) for an environmental resource permit (ERP). The Application is for a Standard General (minor systems) ERP. The Application states that the proposed surface water management system is to serve a 11,564 square foot health spa with associated infrastructure improvements, such as parking, utilities, landscaping, and a stormwater detention facility. Section H of the Application responds to form questions that are intended to determine whether an application meets the requirements of a standard general ERP for a minor surface water system. Among the threshold requirements is that the proposed discharges from the site "will meet State water quality standards, and the surface water management system will meet the applicable technical criteria for stormwater management in the Basis of Review." Another threshold requirement is that the proposed activities will not cause significant adverse impacts individually or cumulatively. The Application states that the water quality treatment system will be on-line detention with effluent filtration. The Application and related documents describe the system in greater detail. The system consists of drains, inlets, a swale, an underground vault to provide effluent filtration through a sand filter and perforated pipe, an internal oil and grease skimmer, a control box, and a 15-inch diameter reinforced concrete pipe providing outfall from the vault. By Notice of Final Agency Action for Approval dated February 4, 1999, the District proposed the issuance of a "Standard General for Minor Surface Water Management Systems" ERP for the construction, operation, and maintenance of the proposed system (Permit). Permit Specific Condition 2 requires: "The discharges from this system shall meet state water quality standards as set forth in Chapter 62-302 and Rule 62-4.242, F.A.C., for class waters equivalent to the receiving waters." Permit Specific Condition 8 requires, for vault systems, that the system become dry within 72 hours after a rainfall event. Permit Specific Condition 9 requires the operation and maintenance entity to submit inspection reports for inspections to be performed every 18 months. Permit Specific Condition 10 requires a water quality monitoring program for systems, such as the proposed system, using an internal oil and grease skimmer. This condition obligates HBJ to take three samples during each of the first two annual rainy seasons following the commencement of operation of the system. The monitoring must take place immediately after rainfall events of sufficient magnitude to cause a discharge from the outfall structure. If the discharged water does not meet water quality standards for oil and grease, as established by Rule 62.302.510(3)(k), Florida Administrative Code, then the permittee must alter the system to attain compliance for this water quality parameter. The subject parcel is bounded by Fourth Avenue South on the north, First Street South on the east, Second Street South on the west, and an unnamed alley on the south. This site is just south of Al Lang Field. In its present state, the parcel is nearly entirely pervious surface. Some of the stormwater flowing onto the parcel percolates into the soils, and the remainder flows into City of Saint Petersburg stormwater sewers, from which it is carried about two city blocks to Tampa Bay, where it is discharged. The parcel was formerly used for single-family residential housing, but is now mostly cleared. The runoff from the site presently carries mostly sediments. After the proposed construction, 79 percent of the parcel would consist of impervious surface. Although small areas of the developed parcel might remain vegetated, and thus add nutrients into the runoff, the primary change in the runoff will consist of the addition of automobile-related contaminants, including, but not limited to, oil and grease. HBJ's engineer designed the proposed surface water management system to treat the first one-half inch of stormwater runoff. The engineer's report notes, in a letter dated November 13, 1998, that siltation in the vault reduces storage volume, so it is "required that cleaning be done every six (6) months." The report suggests the removal of grass clippings from the parking area, so that they are not transported to the retention vault. The report suggests that the underdrain system should be backflushed periodically, and the control structure should be checked monthly and all debris cleared. In general, the system would collect runoff from the roof downspouts and parking area. The system would provide treatment of the first 1/2 inch of runoff by capturing it in the vault, where it would filter through a layer of several cubic feet of sand before entering a perforated pipe leading to the City stormwater sewer. Runoff from rainfall in excess of the first 1/2 inch would receive little, if any, treatment. It is implicit that the first 1/2 inch of rainfall contains the first flush of contaminants from impervious surfaces. Nothing in the record specifies the efficacy of treatment provided by this standard, although it obviously is less than 100 percent efficient because of the higher standard imposed upon systems discharging into Outstanding Florida Waters (OFW). However, a pre- and post-development analysis of the runoff from the subject parcel would reveal an unknown additional volume of runoff from the developed site, due to the replacement of pervious surface with impervious surface. It is unclear whether the developed site would generate a reduced volume of sediments in this increased volume of runoff. Although little vegetated surface would exist post-development, the record does not reveal the extent to which the pre-development pervious area fails to capture the sediments prior to their entering the City stormwater system. More problematic are the automobile-related contaminants, such as oil and grease, that will be introduced into the runoff by the developed site. Presumably, the runoff from the undeveloped site contains few, if any, such contaminants. Thus, any automobile-related contaminants discharged from the surface water management system would likely be an increase from the amount of such contaminants presently discharged from the site. The runoff from the developed site would enter the City of Saint Petersburg stormwater sewer system and would be released in the nearby Tampa Bay. The record does not disclose the stormwater sewer line transporting the discharge, nor the outfall of the line into Tampa Bay. By stipulation, the parties agreed that Tampa Bay is an OFW and that discharge from the developed site would enter the City of Saint Petersburg stormwater sewer system. Tampa Bay is classified as Class II waters, which are approved for shellfish harvesting. The record does not disclose the point of discharge of the City stormwater line that would receive discharge from the developed site. However, the proximity of the site to Tampa Bay strongly suggests that the outfall would be in Tampa Bay, and it is only slightly less probable that the outfall would be at a point in the bay in the immediate vicinity of the site. The record suggests that the waters of Tampa Bay likely to receive the discharge from the site are impaired. For example, water quality conditions mandated the closing of "Lower Tampa Bay" to shellfish harvesting, for an unstated period of time, effective at sunset on July 5, 1999. Also, the Department of Environmental Protection listed two bayous in the immediate vicinity of the site as noncompliant with federal water quality standards due to excessive coliform bacteria counts and nutrients and insufficient levels of dissolved oxygen. The Basis of Review (BOR) is a document adopted by the District. It contains specific "criteria" for permitting. However, as BOR Section 1.3 explains, the goal of these criteria is to meet District water resource objectives, and the criteria are "flexible." Alternative methods of meeting "overall objectives" may be acceptable, depending upon the "magnitude of specific or cumulative impacts." The criteria, which are flexible, are the means by which the District assures that it meets its objectives, which are not flexible. BOR Section 3.1.0 recognizes that "a wide array of biological, physical and chemical factors affect the functioning of any wetland or other surface water community. Maintenance of water quality standards in applicable wetlands and other surface waters is critical to their ability to provide many of these functions." BOR Section 3.1.0 elaborates: "It is the intent of the Governing Board [of the District] that the criteria in subsections 3.2 through 3.2.8 be implemented in a manner which achieves a programmatic goal and a project permitting goal of no net loss of wetlands or other surface water functions." BOR Section 3.1.1 requires that an applicant provide "reasonable assurance" of several things. BOR Section 3.1.1(a) requires that "a regulated activity will not adversely impact the value of functions provided to fish, wildlife and listed species, including aquatic and wetland dependent species, by wetlands and other surface waters and other water related resources of the District. (paragraph 40D-4.301(1)(d), F.A.C.) (see subsection 3.2.2)." BOR Section 3.1.1(c) provides that: a regulated activity will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of Sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300 and any special standards for Outstanding Florida Waters . . . set forth in sections 62-4.242(2) and (3), F.A.C., will be violated (paragraph 40D-4.301(1)(e), F.A.C.). BOR Section 3.1.1(d) provides that "a regulated activity . . . located in close proximity to Class II waters . . . will comply with the additional criteria in subsection 3.2.5 (paragraph 40D-4.302(1)(c), F.A.C.)." BOR Section 3.1.l(f) provides that "a regulated activity will not cause adverse secondary impacts to the water resources (paragraph 40D-4.301(1)(f), F.A.C.) (see subsection 3.2.7)." BOR Section 3.1.1(g) provides that "a regulated activity will not cause adverse cumulative impacts upon wetlands and other surface waters . . . (paragraph 40D-4.302(1)(b), F.A.C.) (see subsection 3.2.8)." BOR Section 3.2.4 provides that an applicant must provide "reasonable assurance that the regulated activity will not violate water quality standards in areas where water quality standards apply. . . . The following requirements are in addition to the water quality requirements found in Chapter 5." BOR Section 3.2.4.2(c) provides that the applicant must address the long-term water quality impacts of a proposed system, including "prevention of any discharge or release of pollutants from the system that will cause water quality standards to be violated." BOR Section 3.2.5 provides: The special value and importance of shellfish harvesting waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shell fish is recognized by the District. In accordance with section 3.1.1.(d), the District shall: (b) deny a permit for a regulated activity in any class of waters where the location of the system is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the regulated activity will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. BOR Section 3.2.7 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause adverse secondary impacts to the water resource" as described in this section. However, this section explicitly disregards negligible or remotely related secondary impacts. BOR Section 3.2.8 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters " BOR Section 4.2 limits off-site discharge "to amounts which will not cause adverse off-site impacts." For a proposed activity within an open drainage basin, as is the subject proposed activity, the allowable discharge is (presumably the greatest of) any amount determined in previous District permits, the legally allowable discharge at the time of the permit application, or historic discharge. Historic discharge is the peak rate at which runoff leaves a parcel of land by gravity under existing site conditions. BOR Section 5.1 requires that proposed discharges meet applicable state water quality standards. This chapter of the BOR requires that proposed systems satisfy certain quantitative criteria, depending on the type of water treatment system. However, BOR Section 5.1 warns: in certain instances a design meeting those standards may not result in compliance with the state water quality standards referenced above. Unless an applicant has provided reasonable assurance that a design will not cause or contribute to a violation of state water quality standards, the District may apply more stringent design and performance standards than are otherwise required by this chapter. Projects designed to the criteria found in this section shall be presumed to provide reasonable assurance of compliance with the state water quality standards referenced above. . . . BOR Section 5.2 sets quantitative criteria for various types of surface water management systems. The subject system is a detention, on-line treatment system. BOR Section 1.7.5 defines "detention" as the "delay of storm runoff prior to discharge into receiving waters." BOR Section 1.7.28 defines "on-line treatment system" as a "dual purpose system that collects project runoff for both water quality and water quantity requirements. Water quality volumes are recovered through percolation and evaporation while water quantity volumes are recovered through a combination of percolation, evaporation, and surface discharge." BOR Section 5.2.b applies to "[d]etention with effluent filtration system (manmade underdrains)." BOR Section 5.2.b.1 provides that proposed activities draining less than 100 acres "shall treat the runoff from . . . the first one-half inch runoff." BOR Section 5.2.b.6 adds: "Maintenance of filter includes proper disposal of spent filter material." BOR Section 5.2.c applies to "on-line treatment system[s]." This section also requires the treatment of the first one-half inch of runoff. However, BOR Section 5.2.e provides: Projects discharging directly into Outstanding Florida Waters (OFW) shall be required to provide treatment for a volume 50 percent more than required for the selected treatment system . . .. Applicant has provided reasonable assurance that the proposed surface water management system would not cause adverse water quantity impacts to receiving waters and adjacent lands and would not cause flooding. In terms of water quantity, the proposed system is designed to meet the requirements of the ten-year storm. The subject site is a short distance from Tampa Bay, and, as already noted, it is very likely that the runoff discharges into Tampa Bay at a location not far from the subject site. Thus, water quantity and flooding are irrelevant to this case. However, Applicant has not provided reasonable assurance that the proposed surface water management system would not cause adverse impacts to the value of functions provided to fish and wildlife by nonwetland surface waters and would not adversely affect the quality of receiving waters. The receiving waters of the discharge from the subject site are Class II waters that are OFW. However, these waters are also impaired sufficiently as to be in violation of certain federal water quality standards and to require the closure, at least at times, of shellfish harvesting. There are three deficiencies in the proposed permit. First, it does not specify, in clear and enforceable language, an inspection and maintenance program, which includes the undertaking by the Applicant to backwash the system at specified intervals, to replace the sand filtration medium at specified intervals, to dispose of the sand filtration medium so that the captured contaminants do not reenter waters of the state, to monitor the water discharged from the oil and grease skimmer at specified intervals following the first two years' monitoring, and generally to take any necessary action to correct deficiencies uncovered from inspections. Second, the treatment of the first 1/2 inch of runoff is insufficient for the system, which is discharging directly into an OFW. BOR Section 5.2.e raises this standard to 3/4 inch. Direct discharges requires the identification of the first receiving waters. Receiving waters are waters of the state that are classifiable as Class I-V waters. Receiving waters thus do not include waters in a stormwater sewer pipe, which are not waters of the state nor are they classifiable. Water quality determinations often require comparison of the quality of the discharged water with quality of the receiving waters. The off-site piping of the discharged water does not preclude such comparison. In such case, the analysis extends to the first receiving waters into which the pipe empties. The District's argument to the contrary invites circumvention of those provisions enacted and promulgated for the protection of OFWs. For example, several owners of land abutting an OFW could establish a jointly owned stormwater sewer line so that the point of comparison for their discharge would be the waters in the pipe rather than the OFW. Third, Applicant failed to submit a plan or propose a procedure demonstrating that the proposed activity would not have a negative effect on the Class II waters of Tampa Bay and would not result in violations of water quality standards in these Class II waters. The District failed to determine the outfall of the discharge from the subject site, so it failed to enforce the requirement of the plan required by BOR 3.2.5 for the protection of the special value of Class II waters. Although required to account for cumulative impacts, the plan will necessarily reflect the characteristics of the site--e.g., 1.6 acres contributing largely automobile-based contaminants and not nutrients--and the characteristics of the receiving waters--e.g., Tampa Bay is vast and relatively impaired, though, in the vicinity of the subject site, more likely due to excessive nutrients.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying the ERP application of HBJ Investments, Inc. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 23rd day of December, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 John R. Thomas Wyckoff & Thomas, P.A. 233 Third Street North, Suite 102 Saint Petersburg, Florida 33701 Michael Jacobs Director, Legal Affairs 25 Second Street North, Suite 160 Saint Petersburg, Florida 33701 Anthony J. Mutchler Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether, and what, reasonable mitigative conditions are necessary to protect the interest of the public and the environment, prior to issuing Petitioner's default permit.
Findings Of Fact Application and Default Petitioner's application is to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing 650 foot-long man-made canal of the same width and depth, normal (perpendicular) to old Central and South Florida Flood Control (now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the northwest shore of Lake Okeechobee. Petitioner's initial, incomplete application filed in DEP's Port St. Lucie office on August 31, 2000, included: the proposed project's location by County, section, township, and range; its legal description; a sketch of its general location and surrounding landmarks; a SFWMD letter verifying conformity with the requirements of a "No Notice General Permit for Activities in Uplands" of a drawing for a proposed pond expansion (to a size less than half an acre), "which will provide borrow material necessary for a house pad and access drive"; a description of water control Structure 127, together with its purpose, operation, and flood discharge characteristics, which were said to describe water levels in Buckhead Ridge, the name of the subdivision where the project was proposed; two virtually identical copies of a boundary survey for Petitioner's property (one with legal description circled) showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, at a scale of one inch equals 200 feet; two more virtually identical copies of the boundary survey at the same scale showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, and the proposed canal extension and house locations; and a copy of a 1996 aerial photograph of Petitioner's property and existing canal, and vicinity. The application did not describe a proposed method or any other details of construction, include any water quality information, or include a water quality monitoring plan. On September 15, 2000, Petitioner filed an additional page of the application form with DEP's Punta Gorda office. The page added the information: "Digging to be done with trac-hoe." No other specifics of the proposed construction method were included. What happened after the filing of the application is described in Tuten I and Tuten II, which are the law of the case. However, those opinions do not explain the delay between Tuten I and the issuance of DEP's proposed ERP with conditions approximately two years later. The evidence presented at the final hearing explained only that counsel of record for DEP promptly asked district staff to draft a proposed default ERP with conditions that "would probably track the RAI that had been sent out prior to the default." DEP's district staff promptly complied and forwarded the draft to DEP's Office of General Counsel in Tallahassee, which did not provide any legal advice as to the draft ERP for almost two years. There was no further explanation for the delay. As reflected in Tuten II and in the Preliminary Statement, it was DEP's position that the proper procedure to follow after its default was to issue a proposed ERP with conditions and that it would be Petitioner's burden to request an administrative hearing to contest any conditions and to prove Petitioner's entitlement to a default ERP with conditions other than those in DEP's proposed ERP. DEP's Proposed General Conditions The conditions DEP wants attached to Petitioner's default permit include general conditions taken from SFWMD's Rule 40E-4.381, which are appropriate, as indicated in the Preliminary Statement and Conclusions of Law, and as conceded by Petitioner's expert. While the Rule 40E-4.381 general conditions are appropriate, Petitioner takes the position (and his expert testified) that some of the general permit conditions contained in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that "issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules"), are more appropriate general conditions to attach to Petitioner's default ERP, even if technically inapplicable, because the Chapter 62 Rules govern the operation of a permitted project (whereas the former govern the construction of a permitted project) and are "more protective of the environment." Actually, all of the rules contain general conditions that govern both construction and operation phases of an ERP, and all are "protective of the environment." There is no reason to add general conditions taken from Rules 62-4.160 and 62-4.070(7) to the applicable general conditions contained in Rule 40E-4.381. DEP's Proposed Specific Conditions (i) In General The conditions DEP wants attached to Petitioner's default permit also include specific conditions which essentially require that Petitioner provide the information in the RAI sent in December 2000, together with additional specific conditions thought necessary to protect the environment in light of the lack of detail in the application without the answers to the RAI. Some DEP's proposed specific conditions are designed to ascertain whether the application would provide reasonable assurance that permitting criteria would be met. (They make the requested information subject to DEP "approval" based on whether reasonable assurance is provided.) In general, those specific conditions no longer are appropriate since DEP is required to issue a default permit. (Looked at another way, inclusion of those specific conditions effectively would un-do the default, in direct contradiction of the court's opinion Tuten I and Tuten II.) See Conclusion of Law 52, infra. On the other hand, some of the RAI information was designed to ascertain the proposed method and other details of construction. Pending the "answers" to those "RAI conditions," DEP also wants broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. Petitioner opposes DEP's proposed broad specific conditions. He takes the position that it was incumbent on DEP in this proceeding to use discovery procedures to ascertain Petitioner's intended method of construction and tailor specific conditions to the method of construction revealed through discovery. At the same time, Petitioner opposes DEP's proposed specific conditions requiring RAI-type information, including the details of his proposed construction method. Notwithstanding the positions Petitioner has taken in this case, his expert testified that Petitioner intends to use a steel wall inserted between the water and upland at the end of the existing canal, phased excavation from the upland side, and removal of the steel wall in the final phase of construction. Assuming that method of construction, Petitioner takes the position (and his expert testified) that the statutes, rules, and permit conditions acceptable to Petitioner, and which generally prohibit pollution of the environment, are adequate. Even if the statutes, rules, and permit conditions acceptable to Petitioner would be adequate for the method of construction Petitioner now says he will use, Petitioner's application does not in fact commit to a method of construction. All Petitioner's application says is that he intends to dig with a trac-hoe. Without a binding commitment to a method of construction, it was appropriate for DEP to take the position that specific conditions were necessary to ascertain the method of construction Petitioner would use and, pending the "answers" to those "RAI conditions," and to impose broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. In his PRO, Petitioner committed to use the construction method described by his expert during the hearing, as follows: Excavation of any spoil shall be done by means of a mechanical trac-hoe; Prior to the excavation of any soil, Petitioner shall first install an isolating wall, such as interlocking sheet pile, between the existing man-made canal, and the proposed canal extension; The mechanical excavation shall be done in such a manner such that the excavated soil is not deposited in wetlands or in areas where it might be reasonably contemplated to re-enter the waters of the State of Florida; After the proposed canal extension is excavated to its project limits in the foregoing manner, the side slopes of the canal extension shall be allowed to revegetate prior to removal of the isolating wall. With a condition imposing this method of construction, fewer and narrower specific conditions will be necessary. ii. Seriatim Discussion DEP's proposed Specific Condition 1 requires a perpetual conservation easement prohibiting docking and mooring of water craft on all portions of Petitioner's property within the canal extension in order to "address cumulative impacts." But DEP did not prove that the proposed conservation easement was reasonably necessary to protect the interest of the public and the environment. First, DEP did not prove that there would be any cumulative impacts, much less unacceptable cumulative impacts, from Petitioner's project. See § 373.414(8), Fla. Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if unacceptable cumulative impacts were proven, those could be addressed in other permit cases (assuming no DEP default in those proceedings), since the concept of cumulative impacts essentially requires an applicant to share acceptable cumulative impacts with other similar permittees, applicants, and foreseeable future applicants. See Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27, 2002). As Petitioner points out, the easement further described in Specific Condition 1 appears to be overly broad for its stated purpose in that it would cover "the legal description of the entire property affected by this permit and shown on the attached project drawings," which could be interpreted to include not just the canal extension but the entire extended canal, or even the entirety of Petitioner's 6.6 acres of property. Indeed, the latter might have been the actual intention, since DEP's witness testified that Specific Condition 1 also was intended to address impacts from fertilizer runoff and septic tank leaching from new homes built along the canal. Although some of those impacts (as well as future construction of additional homes and docks) actually are secondary impacts, not cumulative impacts, it is possible that they can be addressed in DEP or SFWMD proceedings on future applications, as well as in Department of Health proceedings on septic tank installations. DEP's proposed Specific Condition 2 requires that: spoil material from the dredging to be "used for the sole purpose of constructing a single-family fill pad" on Petitioner's property under a pending permit; spoil "be placed in a manner so as not to affect wetlands or other surface waters"; and the "spoil disposal location shall be shown in the drawings required by Specific Condition #4 below." DEP did not prove that the first requirement was reasonably necessary to protect the interest of the public and the environment. First, it is unreasonable since Petitioner already has built the referenced single-family fill pad and a home on top of it. Second, the reason DEP's witness gave for this requirement was that, under an operating agreement with SFWMD (which was officially recognized), DEP only has jurisdiction to take action on single-family uses (which he defined to include duplexes, triplexes, and quadriplexes) but not on larger multi-family and certain other projects. However, the operating agreement on jurisdiction is not a reason to place Specific Condition 1 on the use of spoil material on Petitioner's default permit. SFWMD can regulate, in permitting proceedings under its jurisdiction, the placement of fill material for multi- family construction or other projects not under DEP jurisdiction. In addition, under the operating agreement, jurisdiction can be "swapped" by written agreement in cases where deviation from the operating agreement would result in more efficient and effective regulation. The second two requirements under Specific Condition 2 are reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 3 requires disclosure of all pending and issued permits for the property from SFWMD, Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP did not prove that this is reasonable or reasonably necessary to protect the interest of the public and the environment. DEP probably has all such permits and can easily obtain any it does not have. DEP's proposed Specific Condition 4 requires fully dimensional plan view and cross-sectional drawings of the property and area to be dredged, before and after dredging, including a north arrow and the water depths in and adjacent to the dredge area. DEP's witness stated that the primary purpose of this part of the condition is to provide hydrographic information normally provided in an application (or required in an RAI) so that DEP's hydrographic engineer can ascertain flushing characteristics, which are pertinent primarily to the dissolved oxygen water quality parameter and to heavy metals from boat use. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate since DEP is required to issue a default permit. See Finding 9, supra. However, information regarding flushing characteristics, combined with other specific conditions, is reasonable and necessary to protect the interest of the public and the environment. See Finding 27, infra. In addition, the plan view and cross-sectional drawings required by Specific Condition 4 are to include the location of navigational obstructions in the immediate area, any roads, ditches, or utility lines that abut the property; any encumbrances, and any associated structures. DEP's witness stated that the primary purpose of this information is to determine whether Petitioner has provided reasonable assurance that the "public interest" test under Rule 40E-4.302 is met, and make sure that management, placement, and disposal of spoil material do not infringe on property rights or block culverts and cause flooding. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. However, information regarding the location of culverts to assure that management of spoil does not cause flooding is reasonable and necessary to protect the interest of the public and the environment. In addition to objecting to having to provide RAI information as a "default permittee," Petitioner's expert asserted that the information requested in Specific Condition 4 would be provided as part of the "as-built" drawings required by General Condition 6. But General Condition 6 does not require "as-built" drawings. Rather, it requires an "as-built" certification that can be based on "as-built" drawings or on-site observation. Besides, the purpose of the "as-built" certification is to determine "if the work was completed in compliance with permitted plans and specifications." Without the information requested in Specific Condition 4, there would only be vague and general permitted plans and specifications and hydrographic information. Finally as to Specific Condition 4, Petitioner objects to the requirement that the drawings be sealed by a registered professional engineer. However, Petitioner cites to General Condition 6, which requires that the "as-built" certification be given by a "registered professional" and cites Rule Form 62- 343.900(5), which makes it clear that "registered professional" in that context means a registered professional engineer. DEP's proposed Specific Condition 5 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that the canal extension will not violate water quality standards due to depth or configuration; that it will not cause a violation of water quality standards in receiving water bodies; and that it will be configured to prevent creation of debris traps or stagnant areas that could result in water quality violations. The reasonable assurance is to include hydrographic information or studies to document flushing time and an evaluation of the maximum desirable flushing time, taking several pertinent factors into consideration. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. In addition, Petitioner's expert testified without dispute that the information requested could take more than 180 days and cost approximately $20,000. However, it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be configured so as have the best practicable flushing characteristics. DEP's proposed Specific Condition 6 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that construction of the canal extension will meet all permit criteria set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. DEP's proposed Specific Condition 7 requires Petitioner to submit existing water quality information for DEP approval within 180 days of permit issuance and before any construction. In this instance, DEP's approval would not be a determination on the provision of reasonable assurance but a determination as to the reliability of the water quality information, which is necessary to establish a baseline for assessing and monitoring the impact of the project. For that reason, the information is reasonable and necessary to protect the interest of the public and the environment. Petitioner's expert testified that the information could cost $2,000-$3,000 to produce (and more, if DEP rejects the information submitted, and more information is required). He also testified that water quality information already is available, including over 25 years worth of at least monthly information on all pertinent parameters except biological oxygen demand and fecal coliform, at a SFWMD monitoring station in the Rim Canal at Structure 127 (a lock and pump station at the Hoover Levee on Lake Okeechobee) approximately 8,000 feet away from Petitioner's canal. DEP did not prove that the SFWMD information would not serve the purpose of establishing baseline water quality for Petitioner's canal for all but the missing parameters. For that reason, only water quality information for the missing parameters is reasonable and necessary to protect the interest of the public and the environment in this case. DEP's proposed Specific Condition 8 requires that, if the water quality information required by Specific Condition 7 shows any violations of state ambient water quality standards, Petitioner must submit for DEP approval, within 180 days of permit issuance and before any construction, a plan to achieve net improvement for any parameters shown to be in violation, as required by Section 373.414, Florida Statutes. See also BOR § and 4.2.4.2. Normally, if applicable, this information would be expected in an application or RAI response. Petitioner's expert testified that this condition would require Petitioner to help "fix Buckhead Ridge" (unfairly) and that it would cost lots of money. But Petitioner did not dispute that the law requires a plan for a "net improvement," which does not necessarily require a complete "fix" of water quality violations, if any. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of a net improvement plan. See Finding 9, supra. But a specific condition that Petitioner implement a plan to achieve net water quality improvement in the event of any water quality violations would be reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 9 requires Petitioner to submit for DEP's approval, at least 60 days before construction, detailed information on how Petitioner intends to prevent sediments and contaminants from being released into jurisdictional waters. DEP asserts that this specific condition asks for a detailed description of how the applicant will comply with various subsections of BOR § 4.2.4.1 that address short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be constructed using adequate turbidity barriers; stabilize newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity; avoid propeller dredging and rutting from vehicular traffic; maintain construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands and other surface waters; and prevent any other discharges during construction that will cause water quality violations. DEP's proposed Specific Condition 10 requires Petitioner to submit, at least 60 days before construction, detailed information regarding Petitioner's plans for handling spoil from dredging, including "discharge details, locations retention plans, volumes, and data used to size the disposal cell(s)." It allows this information to be combined with the Specific Condition 2 submittal. It also requires spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP asserts that this specific condition (like Specific Condition 9) is necessary to comply with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition requiring spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP's proposed Specific Condition 11 requires Petitioner to submit "as-built" drawings to DEP's Punta Gorda office with 30 days after completion of construction, "as required by General Condition #6." Petitioner's expert testified that this condition was unreasonable only because it duplicates General Condition 6 and two statutes. But General Condition 6 actually does not require "as-built" drawings, see Finding 9, supra, and it is not clear what statutes Petitioner's expert was referring to. For these reasons, and because it provides a filing location, Specific Condition 11 is reasonable and reasonably necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 12 requires Petitioner to "maintain the permitted canal free of all rafted debris by removal and property upland disposal." DEP asserts that this specific condition is necessary to comply with BOR § by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). Rafted debris, which may be of an organic or inorganic nature, can accumulate at the end of canals due to wind, waves, boats, or other forces. Such organic rafted debris may rot and, by creating a high biological oxygen demand, rob the water of dissolved oxygen. Petitioner's only expressed opposition to this condition is that the conservation easement in Specific Condition 3 might prevent compliance. While it is unclear how the easement would prevent compliance, the issue is eliminated if no conservation easement is required. DEP's proposed Specific Condition 13 requires Petitioner to use turbidity screens during construction for compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The turbidity screen requirements detailed in this specific condition are typical best management practices that contractors use and are a standard condition placed in permits of this nature by DEP. Petitioner contends that turbidity screens are unnecessary given his intended construction method and that other conditions are sufficient to cover DEP's concerns. However, as indicated, the application does not commit to a method of construction. With the application in its current state, Specific Condition 13 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 14 requires Petitioner to "ensure that any discharge or release of pollutants during construction or alteration are not released into wetlands or other surface waters that will cause water quality standards to be violated." Again, this condition is intended to ensure compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While this specific condition seems general and perhaps duplicates other conditions (which was Petitioner's only point of contention), DEP added it in an attempt to make sure the possible and not uncommon release of pollutants from construction equipment was addressed. As such, the condition is appropriate. DEP's proposed Specific Condition 15 provides details on the use of turbidity screens. Petitioner's primary points of contention are that turbidity screens are not needed for his intended construction method and that other conditions are sufficient without this condition. As such, the relevant issues already have been addressed in connection with Specific Condition With the application in its current state, Specific Condition 15 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 16 requires Petitioner to used staked filter cloth to contain any turbid run- off and erosion from created slopes of the canal extension. This is the most common best management practice and is a standard condition for ERP permits dealing with side slopes that may affect water quality. Unstable slopes can result in chronic turbidity, which is detrimental to wildlife. Unstable slopes also can lead to upland runoff being deposited into the water along with debris and sediment. Such runoff can bring deleterious substances such as heavy metals and nutrient-loaded substances that might impact dissolved oxygen levels in the water. Petitioner's primary points of contention on Specific Condition 16 are that, like turbidity screens, staked filter cloth is not needed for Petitioner's intended construction method and that other conditions are sufficient without this condition. (Petitioner also questions why the condition gives Petitioner up to 72 hours from "attaining final grade" to stabilize side slopes, but the condition also requires side slope stabilization "as soon as possible," and the 72-hour outside limit seems reasonable.) As such, the relevant issues already have been addressed in connection with Specific Condition 13 and 15. With the application in its current state, Specific Condition 16 is appropriate subject to a demonstration by Petitioner that staked filter cloth is not needed if he uses the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 17, 18, 19, and 20: details required long-term water quality monitoring and reporting [#17]; establishes sampling intervals and requires Petitioner to submit a "plan to remediate" if monitoring shows water quality violations or "a trend toward future violations of water quality standards directly related to the permitted canal" [#18]; allows "additional water quality treatment methods" to be required if water quality monitoring shows it to be necessary [#19]; and allows water quality monitoring requirements to be modified (which "may include reduction in frequency and parameters . . . or the release of the monitoring process"), "based on long term trends indicate that the permitted canal is not a source to create water quality violations [#20]." These conditions are intended to ensure compliance with BOR § 4.2.4.2 by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The evidence was that these specific conditions are standard for ERP permits where a constructed system may lead to water quality violations in the long term. Contrary to Petitioner's contentions, conditions of this kind are not dependent on a post-construction finding of water quality standard violations (even though DEP defaulted on Petitioner's application). Besides contending that monitoring requirements in Specific Conditions 17 and 18 are unnecessary, Petitioner also contends that they are too extensive and not tailored to Petitioner's intended construction, but DEP proved their necessity, even assuming the construction method committed to in Petitioner's PRO. Petitioner complains that Specific Condition 19 is vague and that Petitioner's ERP does not provide for "water quality treatment." But the present absence of post-construction water quality treatment should not preclude the possible future imposition of some kind of water quality treatment if monitoring shows it to be necessary. For this kind of condition, the absence of detail regarding the kind of treatment to be imposed is natural since it would depend on future events. DEP's proposed Specific Condition 21 merely requires that Petitioner's project comply with State water quality standards in Florida Administrative Code Rules 62-302.500 and 62- 302.530. Petitioner contends that this is duplicative and unnecessary. But it certainly is not unreasonable to be specific in this regard. No Improper Purpose As part of his request for attorney's fees under Section 120.595, Florida Statutes, Petitioner necessarily contends that DEP participated in this proceeding "for an improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Even assuming that DEP should be considered a "nonprevailing adverse party," Petitioner's evidence did not prove that DEP's participation was for an "improper purpose." To the contrary, DEP "participated" initially because Petitioner filed an application. DEP's denial of Petitioner's application was not proven to be "for an improper purpose" but rather for the purpose of attempting to protect the environment. The propriety of the denial was litigated in Tuten I, which made no finding that the denial was "for an improper purpose" and which ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." The two-year delay between Tuten I and Tuten II was not fully explained, but Tuten II also made no finding that the denial, or the delay, or DEP's proposed ERP with conditions were "for an improper purpose" and again ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." While DEP's views on the nature of the hearing to be conducted for purposes of determining "reasonable mitigative conditions" was rejected, it was not proven that DEP argued its views "for an improper purpose" or that its participation, once its views were rejected, was "for an improper purpose," as defined by statute. To the contrary, the evidence was that DEP participated in this proceeding in an attempt to place conditions on Petitioner's permit which DEP thought were necessary to protect the environment, many (although not all) of which are accepted in this Recommended Order. As Petitioner accepts and points out, it remains necessary for Petitioner to construct and operate his project in a manner that does not violate environmental statutes and rules. But without any water quality information or monitoring, DEP's enforcement of those laws and rules will be hamstrung.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Petitioner a default ERP, to expire five years from issuance, to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing man-made canal, as applied for, subject to: DEP's proposed General Conditions 1-19; DEP's proposed Specific Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5, and 7-10, as modified by the Findings of Fact; and the construction method committed to in Petitioner's PRO (see Finding 14, supra. DONE AND ENTERED this 11th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006.
