The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated January 8, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health, including the county health departments such as the St. Lucie County Health Department ("County Health Department"), are responsible for supervising and controlling limited use public water systems. Section 381.0062(3), Florida Statutes (1997). Mr. Gorman is the owner of three duplexes located at 120 and 122 Laidback Way, Fort Pierce, Florida; 140 and 142 Laidback Way, Fort Pierce, Florida; and 160 and 162 Laidback Way, Fort Pierce, Florida. The duplexes were built in 1982 and 1983 and each contains two units which are available for rent. Water is piped into each duplex from a well located on the property. The wells providing water to 120 and 122 Laidback Way and to 140 and 142 Laidback Way were inspected by the Department of Health and Rehabilitative Services in May 1994 and found to be satisfactory pending results of water tests. Two-day bacteriological analyses were conducted on May 2 and 3, 1994, on the wells serving these two properties, and the results were satisfactory. 3/ The 1994 inspection report for the well serving the property at 120 and 122 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 30-gallon "p tank"; a 20-gallon water softener filter; and a 30-gallon brine tank. The 1994 inspection report for the well serving the property at 140 and 142 Laidback Way reflects that it had the following equipment: a one-half horsepower pump; a 20-gallon "p. tank"; a 25-gallon water softener filter; and a 40-gallon brine tank. In a letter dated August 21, 1998, the County Health Department notified Mr. Gorman that he needed to submit the application enclosed with the letter and a $140.00 fee to bring the "permit" to current status for the property located at 140 and 142 Laidback Way. The letter was inartfully composed and conveyed incomplete information regarding the nature of the permit. The letter did, however, contain reference to "Chapter" 381.0062, Florida Statutes, and Chapter 64E-8, Florida Administrative Code, and it also provided notification that Chapter 64E-8 required quarterly sampling of limited use public water systems for bacteria and a lead and nitrate test every three years. The County Health Department sent Mr. Gorman an identical notice, dated August 21, 1998, regarding the property located at 160 and 162 Laidback Way. The County Health Department sent Mr. Gorman a somewhat different letter, dated August 31, 1998, regarding the "Limited Use Public Water Systems" for the property located at 120 and 122 Laidback Way. The letter notified Mr. Gorman that his permit to operate the "referenced water system has expired as of September 30, 1998." The letter reiterated the information contained in the August 21 letter and requested in addition that Mr. Gorman submit "a minimum 8.5 x 11 inch site plan of the system, drawn to scale, that accurately identifies the location of the source of water in relation to property boundaries and contaminant sources, i.e., well must be 75 feet from septic system, etc." and an "[e]quipment list: pump, tank, softener, automatic chlorinate, etc., manufacturer, model #, and capacity." Finally, Mr. Gorman was notified of the permitting and testing fees and told that the "[a]pplication with required site and equipment information must be submitted with necessary fees within 30 days receipt of this notification." Mr. Gorman responded with a letter dated October 16, 1998, in which he posed several questions to the County Health Department: Do you understand that these are duplexes? Are all rental properties including single family subject to these regulations? Can you give me a valid reason why rental units of two units or more should be subject to quarterly bacterial testing (I believe the statute only authorizes it annually) and not all other residential properties, public facilities or otherwise that might use well water? Mr. Gorman requested a response to his questions but did not provide the information, applications, and permit fees requested in the letters dated August 21 and August 31. In a letter dated December 14, 1998, sent certified mail with return receipt requested and referenced as a Notice of Violation, the County Health Department notified Mr. Gorman that he was operating limited use community public water systems without a permit at 120 and 122, 140 and 142, and 160 and 162 Laidback Way and that he had not provided the following required information: Signed, dated application form. An operation permit fee of $75.00 for the initial permit. A site plan of the property that accurately identifies the location of the well in relation to property, boundaries and contaminant sources such as septic tank systems. Capacity/size, model and brand information on system components. Well completion report if available or year well was installed if known. Required chemical analysis results (lead and nitrate). Initial satisfactory two-day source (well) water and system water bacteriological tests results. Mr. Gorman was told to contact Bruce McLeod within five days of receipt of the notice. Although Mr. Gorman received the notice on December 16, 1998, he did not respond. The County Health Department had not, as of the final hearing, received any reports of illness attributable to the water from the wells at the subject properties, and it does not have any reason to believe that the wells are contaminated. Mr. Gorman had not, as of the final hearing, submitted the applications, permit fees, or information requested by the County Health Department, and he had no operating permits for the wells providing water to the subject properties. The evidence presented in this case is sufficient to establish that the wells providing water to the three duplexes owned and rented by Mr. Gorman each contains two rental units and are limited use community public water systems. Mr. Gorman must have operating permits for the wells providing water to these properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order: Finding that Robert J. Gorman is guilty of three violations of Section 381.0062, Florida Statutes (1997), because he failed to obtain operating permits for the limited use community public water systems he maintains at 120 and 122, 140 and 142, and 160 and 162, Laidback Way, Fort Pierce, Florida; and Imposing an administrative fine in the amount of $1500.00, or $500.00 for each of the three violations. DONE AND ENTERED this 25th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1999.
Findings Of Fact Application No. 76-00254 seeks a consumptive use water permit for 1.08 million gallons per day average daily withdrawal and 2.16 million gallons per day maximum daily withdrawal from one well. This is a new use. The purpose of the consumptive use is a semi-enclosed irrigation system for the irrigation of tomatoes in south Hillsborough County. The water is to be taken from the Floridan Aquifer with some discharge off site. According to Barbara Boatwright, hydrologist for the district, there is some possibility that salt water intrusion may occur, but the district has never documented it in the subject area. The consumptive use will exceed the water crop as defined by the district because 25 percent of the water used will run off site and thus be lost. Except as otherwise stated above, none of the conditions set forth in Subsection 16J-2.11(2),(3) or (4), F.A.C., will be violated. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: By January 1, 1978, applicant shall reduce runoff to 8.6 percent of the amount pumped, which reduction will bring the amount pumped within the water crop as defined by the district. That the applicant analyze the quality of the water at the beginning and end of each production season and that these analyses be submitted to the district. That the district be allowed to install flowmeters on any discharge canal and on the pump with proper notification of applicant and to enter on property to read the meters.
Recommendation Noting that, with the conditions requested by the Southwest Florida Water Management District's staff, issuance of the sought for permit appears consistent with the public interest, it is RECOMMENDED that a consumptive use permit be issued pursuant to Application No. 75-00254 with the conditions set forth in paragraph 4. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Terry Elsberry Staff Attorney Elsberry Brothers, Inc. Southwest Florida Water Route 2, Box 70 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue The issue is whether Respondents should be subject to civil penalties and required to submit a Compliance Plan for the reasons stated in the Administrative Complaint and Order filed on January 8, 2002.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this enforcement action, Petitioner, Southwest Florida Water Management District (District), proposes to assess civil penalties against, and require a compliance plan from, Respondents, Balm Associates, Inc. (Balm) and Goodson Farms, Inc. (Goodson), on the grounds that from March 1999 through July 2001 they made water withdrawals from certain property in Hillsborough County, Florida, without a water use permit, and after a permit was obtained in August 2001, they continued to exceed the annual average daily withdrawals authorized under the permit through the month of November 2001, or just prior to the preparation and issuance of the Administrative Complaint and Order (Complaint).1 While not denying that excessive pumpages may have occurred, and that a permit was not obtained until August 2001, Balm points out that it is the owner-lessor of the property and not the consumptive user of the water, and contends that the District has no authority to enforce its rules against, and recover civil penalties from, the non-user of the water. In its request for a hearing, Goodson did not specifically dispute the allegation that it consumed water without a permit, or exceeded the withdrawal limits under the new permit, but contended instead that the limits were unrealistic and should be modified. At the final hearing, however, Goodson disputed the accuracy of the water consumption figures used in the Complaint. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries and to administer and enforce Chapter 373, Florida Statutes. Balm is a corporation registered to do business in the State of Florida. Its mailing address is 2101 Huntington Avenue, Sarasota, Florida 34232. It owns approximately 220 acres of land in Section 28, Township 31 South, Range 21 East, in Hillsborough County, Florida, which is the site of the alleged wrongdoing. Goodson is a corporation registered to do business in the State of Florida. Its mailing address is Post Office Box 246, Balm, Florida 33503. Goodson is in the farming business and operates a total of 13 farms, including the farm at issue in this proceeding. Permit Requirements Under Rule 40D-2.041(1), Florida Administrative Code, a water use permit is required whenever total withdrawal capacity from any source or combined sources is greater than or equal to 1,000,000 gallons per day (gpd); annual average withdrawal from any source or combined sources is greater than or equal to 100,000 gpd; or withdrawal is from a well having an outside diameter of 6 inches or more at the surface. Rule 40D-2.351(1), Florida Administrative Code, provides that a permittee must notify the District within 30 days of the sale or conveyance of permitted water withdrawal facilities or the land on which the facilities are located. The same rule also provides that where a permit has been issued to a party whose ownership or legal control of the permitted water withdrawal facilities subsequently ends, the party who assumes control over the facilities may apply to transfer the permit to himself or herself up to the renewal date of the transferor's permit. Finally, Rule 40D-2.351(2), Florida Administrative Code, provides that until a permit is transferred or a new permit is obtained, the party subsequently controlling the permitted water withdrawal facilities will be in violation of District rules for making withdrawals without the required permit. History of Permits on the Property On September 29, 1989, the District issued Water Use Permit No. 207135.001 (the .001 permit) to James Brown (Brown) and B & T Growers Partnership (B & T) for water withdrawals from one well for agricultural purposes on Balm's property. The .001 permit authorized annual average withdrawals of 102,000 gpd of groundwater for agricultural irrigation. On August 29, 1990, the District adopted new rules applicable to District permits within the Eastern Tampa Bay Water Use Caution Area (ETBWUCA). The .001 permit was within the ETBWUCA, and Brown and B & T were provided with a Notice of Permit Modification and new Permit Conditions. The new conditions became effective November 15, 1990. New Condition No. 5 provided that By July 31, 1995, all permitted withdrawal points shall be equipped with totalizing flow meters or other measuring devices as approved in writing by the Director, Resource Regulation Department. Such devices shall have and maintain accuracy within five percent of the actual flow installed. On December 14, 1992, the District approved the transfer of the .001 permit from Brown and B & T to B. Kenda Produce. The Unpermitted Water Withdrawals On June 30, 1997, Goodson entered into a two-year agricultural lease with Balm to use a portion of the property, including acreage previously used by B. Kendra Produce. At the time the lease was entered into, neither Respondent applied to the District to have the .001 permit transferred from B. Kendra Produce. It can be reasonably inferred from the evidence that after the first lease expired, the parties continued to execute new lease agreements at least through the time of the hearing. The portion of the property which Goodson leased and farmed is referred to as the "Sweat Loop Farm" and consists of approximately 100 acres. There is one well with an outside diameter of 10 inches at the surface located on the Sweat Loop Farm. The well's total withdrawal capacity is approximately 1,500 gallons per minute (gpm), which is over 1,000,000 gpd. Thus, withdrawals from the well required a water use permit. As noted earlier, Goodson operates a total of 13 farms on approximately 2,500 acres of land. There are approximately 15 wells on all 13 farms, including the Sweat Loop Farm. Michael E. Hare, an irrigation supervisor who is responsible for the irrigation of all 13 of Goodson's farms, installed a total of approximately 8 meters on the farms, including the meter on the Sweat Loop Farm. A totalizing flow meter, which was made by MiCrometer, was installed at the Sweat Loop Farm in June 1997. Mr. Hare acknowledged that he was familiar with MiCrometer meters and would be aware if the MiCrometer flow meter on the Sweat Loop Farm was not functioning properly. Whenever metering devices on the various Goodson farms have malfunctioned in the past, Mr. Hare has taken the malfunctioning meter to a metering company to be fixed. Goodson began irrigating the Sweat Loop Farm in June 1997. Since that time, Goodson has been the sole water user of the well on the farm. In March 1999, Goodson began submitting to the District monthly pumpage reports for the groundwater withdrawals on the Sweat Loop Farm. Although some unmeasured withdrawals presumably occurred prior to March 1999, the Complaint does not identify these as being a violation. Mr. Hare and other supervisors are responsible for collecting the meter readings which go on the monthly pumpage reports and providing them to the District. The information on the reports includes the permit number; the last month's meter reading; the current month's meter reading; the total gallons of water pumped for the current month; the meter total; and the meter factor. To determine the average daily withdrawal on the Sweat Loop Farm, the District relied upon the calculations provided by Goodson as to the total gallons of water pumped for the month and divided this number by 30 days. From March 1999 through July 2001, these quantities were as follows: MONTH/YEAR AVERAGE DAILY PUMPAGE March 1999 April 1999 531,487 No data available May 1999 364,930 June 1999 0 July 1999 0 August 1999 57,410 September 1999 49,563 October 1999 222,667 November 1999 250,667 December 1999 755,003 January 2000 689,433 February 2000 695,073 March 2000 544,427 April 2000 305,153 May 2000 597,720 June 2000 0 July 2000 62,120 August 2000 86,370 September 2000 123,233 October 2000 602,020 November 2000 409,550 December 2000 145,823 January 2001 957,690 February 2001 890,213 March 2001 391,280 April 2001 467,640 May 2001 617,177 June 2001 0 July 2001 0 Under Rule 40D-2.041(1)(a)-(c), Florida Administrative Code, a water use permit was required for Goodson's withdrawals since the well's total withdrawal capacity is approximately 1,500 gpm, which is greater than 1,000,000 gpd; the annual average withdrawals exceeded 100,000 gpd; and the well has an outside diameter of 10 inches at the surface. The withdrawals on the Sweat Loop Farm were not authorized by the .001 permit since neither Goodson or Balm was a permittee under the permit. Even if Goodson could rely on the permit, which it cannot, pumpage data provided by Goodson reflects that the water withdrawals (except for nine months) were in excess of that authorized by the permit. On June 16, 2000, the District mailed a Notice of Non-Compliance for excessive water withdrawals to Goodson. The Notice indicated that if the pumpage values submitted by Goodson were incorrect, Goodson was to explain the error and provide corrected quantities. On June 26, 2000, the District received a written response to the Notice of Non-Compliance from the superintendent of the Sweat Loop Farm who indicated that the pumpage values were correct, and that the excess usage was due to a "serious drought condition" which had caused a "significant financial hardship on [the] farm." The response also indicated that Goodson would contact Mr. Haftel, owner of Balm, to request that he "revise the water use permit for spring crops." On November 22, 2000, the District mailed Goodson a Notice of Violation indicating that the quantities authorized by the .001 permit were still being exceeded and that the District might seek monetary penalties if Goodson failed to come into compliance within 30 days. Despite the foregoing Notice, Goodson continued to make withdrawals without a permit and in excess of the quantities formerly authorized under the .001 permit until August 2001 when a new permit was finally obtained. Issuance of a New Water Use Permit On January 2, 2001, the District received an application for a General Water Use Permit seeking to modify the .001 permit to increase the withdrawal quantities and to transfer the permit from B. Kendra Produce to Balm. "Seymour Haftel/ Balm Associates, Inc." was listed as the applicant, and "Donn Goodson" from " Goodson Farms" was listed as the contact or consultant. Mr. Haftel signed the application on behalf of Balm. Goodson assisted Balm in securing the permit for the Sweat Loop Farm because Goodson wanted more water for irrigation purposes. Section 2.1 of the Basis of Review for Water Use Permit Application, adopted and incorporated by reference by Rule 40D-2.091, Florida Administrative Code, provides that "[a]pplications for leased property, except property leased from the District, must be either a joint application in the name of the lessee and the property owner(s) or be only in the name of the property owner(s)." In a Request for Additional Information mailed to Balm on January 29, 2001, the District asked whether Goodson should be listed as co-applicant on the application. On April 27, 2001, Balm submitted a response which indicated that Goodson should not be listed as co-applicant. On August 6, 2001, the District issued Water Use Permit No. 200007135.002 (the .002 permit) to Seymour Haftel/Balm Associates, Inc. authorizing an increase in the annual average withdrawals to 224,300 gpd. The permit had an expiration date of September 29, 2009. The permit contained a number of special conditions, none of which were challenged by Balm. Unauthorized Withdrawals Under the .002 Permit Special Condition No. 2 of the .002 permit requires in part that the permittee: continue to maintain and operate the existing non-resettable, totalizing flow meter(s), or other flow measuring device(s) as approved by the Regulation Department Director, Resource Regulation, for District ID No(s), Permittee ID No(s)[,] G-1. Such device(s) shall maintain an accuracy within five percent of the actual flow as installed. Total withdrawal and meter readings from each metered withdrawal shall be recorded on a monthly basis and reported to the Permit Data Section, Records and Data Department, (using District forms) on or before the tenth day of the following month. In the event a permittee chooses not to use a totalizing flow meter, as required by Special Condition No. 2, the District will review information provided by the measuring device's manufacturer to determine if the measuring device would maintain a five percent accuracy as required by the Condition. The meters have to be monitored and calibrated periodically for accuracy. It is the permittee's responsibility to comply with the conditions of the permit, including Special Condition No. 2, which requires the submittal of accurate pumpage reports. Goodson submitted the meter readings on behalf of Balm beginning in September 2001, which covered the withdrawals for the month of August 2001. The District relied on the meter readings submitted by Goodson to determine the annual average daily pumpage calculation for the .002 permit. The calculation is a running 12-month average, whereby each month the annual average daily quantity is recalculated based on the previous 12-month pumpage. The running annual average daily pumpage and percentage of pumpage which exceeded the .002 permit from August 2001 through May 2002 are as follows: MONTH/YEAR ANNUAL AVERAGE DAILY PUMPAGE PERCENTAGE OVERPUMPED August 2001 378,462 69 percent September 2001 382,622 71 percent October 2001 376,687 68 percent November 2001 383,008 71 percent December 2001 379,212 69 percent January 2002 327,343 46 percent February 2002 321,530 43 percent March 2002 350,701 56 percent April 2002 356,013 59 percent May 2002 338,131 51 percent As the foregoing data reflects, the withdrawals from the Sweat Loop Farm were in excess of that authorized by the .002 permit from August 2001 through May 2002.
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 determining that Respondents are guilty of the charges in its Administrative Complaint and Order except as concluded in paragraph 48 above and endnote 2 below; that Respondents be required to submit an acceptable written plan (Compliance Plan) to the District for its consideration and approval within fourteen days after entry of the final order; that the Compliance Plan describe how Respondents shall achieve full compliance with the .002 permit; that the Compliance Plan include reductions in withdrawals, water conservation measures, and development and utilization of alternative resources; that the Compliance Plan establish deadlines for implementation and completion of corrective actions; that full compliance be achieved within 120 days after entry of the final order; and that any failure of Respondents to comply with any provision of the Compliance Plan shall constitute a violation of the final order. DONE AND ENTERED this 30th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ 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 30th day of July, 2002.
The Issue The issues presented for decision in this case are: whether Martin County should be granted the re-issuance of Water Use Permit No. 43-00752W for the Tropical Farms Water Treatment Plant and associated wells; and (2) whether Martin County should be granted Water Well Construction Permit No. SF032696B for the construction of Well No. 10 of the Tropical Farms Water Treatment Plant, pursuant to the permitting criteria of Chapter 373, Parts II and III, Florida Statutes; Chapters 40E-2 and 40E-3, Florida Administrative Code; and the Basis for Review for Water Use Permit Applications of the South Florida Water Management District.
Findings Of Fact Petitioner James W. Slusher, Jr., and his wife, Diane L. Slusher, own a residential lot located in unincorporated Martin County at 2376 SW Ranch Trail, Stuart, Florida 34997. On the lot is a single family home. The size of the residential lot is approximately 2.25 acres. Mr. and Mrs. Slusher purchased the subject residential lot and home in September of 1994 from Mrs. Stella Kassinger. Mrs. Kassinger and her late husband (the “original owners”) had the home built on the residential lot in approximately 1980. When the original owners built the home, they had a hole or “pit” dug in the rear portion of the lot. From aerial photographs taken at the time (1979-1980), and based upon the common practice in the area, it appears that the material from the “pit” was spread on-site to provide additional elevation for, and to minimize the potential for flooding of, the home and driveway that were constructed on the lot. Thus, the original “design function” of the “pit” was to provide fill for construction. The original owners thereafter allowed the “pit” to accumulate water and stocked it with fish so that Mr. Kassinger could use it recreationally as a fishing pond. The “design function” of the original “pit” was thus changed so that it would serve as a recreational amenity on the property. During the subsequent 14 years that the original owners lived in the home, they did nothing further to alter or improve the fishing pond. Over the years, the area immediately around the fishing pond became heavily vegetated and was used from time to time by various wild birds and animals. The fishing pond was used by the original owners for fishing and for observing the wildlife it attracted. After purchasing the home, Mr. Slusher also stocked the fishing pond with various fish over the years so that he and his family could continue to use it recreationally. The fishing pond continued to be used by the Slushers for fishing, for observing wildlife, and as a swimming area for their dogs. Currently, the overall dimensions of the fishing pond are approximately 90 feet wide, by 122 feet long, by 10 feet deep at its deepest part, when filled to the level that was natural prior to the operation of Water Well No. 10. Potable water for the Slusher home is obtained from a well drilled on the property, not from the public water system of the County. The Slusher well is located approximately 33 feet from the home. It is attached by PVC pipe to a pump located next to the home. The original owners caused the well to be drilled. The record in this case does not contain any persuasive evidence regarding the details of the Slusher residential water well. Specifically absent are such details as the depth to which the well was originally drilled, the material from which the well tube was made (i.e., cast iron or PVC), and the current physical condition of the sub-surface portions of the well. Mr. Slusher has not done anything to repair or replace the well since he and his wife purchased the home. On August 2, 2000, Mr. Slusher filed a petition with the SFWMD challenging the issuance of Water Well Construction Permit No. SF032696B, and the "use of the well." On November 3, 2000, Mr. Slusher filed an amended petition with the Division of Administrative Hearings, challenging the issuance of Water Use Permit No. 43-00752W and Water Well Construction Permit No. SF032696B. Martin County (“the County”) is a political subdivision of the State of Florida, established in 1925 pursuant to Section 7.43, Florida Statutes, and Section 1, Chapter 10180, Laws of Florida. SFWMD is an independent state agency, operating pursuant to Chapter 373, Florida Statutes. SFWMD originally issued Water Use Permit No. 43-00752W to the County on April 15, 1993. The “water use permit” was for wells and associated equipment at the Tropical Farms Water Treatment Plant (“Tropical Farms WTP”). SFWMD re-issued Water Use Permit No. 43-00752W to the County on March 14, 1996. The re-issued “water use permit” allowed additional wells to be drilled and additional draws of water by the County at the Tropical Farms WTP. One of the additional wells included in the re-issued water use permit was “Well No. 10.” SFWMD issued Water Well Construction Permit No. SF032696B to the County on March 28, 1996, allowing the construction of Well No. 10 at the Tropical Farms WTP. In accordance with the restrictions imposed by the water well construction permit, the County drilled Well No. 10 on a site located at least 100 feet in distance from the fishing pond on the Slushers’ property. The physical location of Well No. 10 is essentially “adjacent to” the Slusher property. County Well No. 10 is approximately 120 feet deep and draws water from the surficial aquifer. It commenced operation in December of 1996. It is uncontested that the operation of the well field, especially County Well No. 10, has caused drawdowns of the pond level and of the groundwater in the area of Mr. Slusher's residential water well. The MODFLOW model used by the County in support of its application indicates a maximum drawdown of 7.4 feet. The persuasive expert opinion evidence in this case indicates that maximum draw downs of 7 or 8 feet would be expected in the area of Mr. Slusher's residential water well. The County has acknowledged that the operation of Well No. 10 has had a significant effect on the drawdown of the water table in the area of the pond. County Well No. 10 appears to have been constructed in a manner consistent with the applicable rules. The well was properly drilled and grouted, the correct materials were used, and the well was constructed in a manner that did not result in harm to the water resources. The water use permit was issued prior to the well construction permit, as is appropriate. Although permitted originally in 1993 and again in 1996, the Tropical Farms WTP did not begin regular operations until June of 1997. It is now part of a consolidated system which includes four other water treatment plants, all operated by the County for the purpose of obtaining and providing potable water to the public county-wide. In support of its applications for the issuance and re-issuance of the water use permit, the County provided SFWMD with so-called “MODFLOW calculations” done by a professional engineering firm retained by the County. MODFLOW was developed by the U.S. Geologic Survey and is considered the standard for assessment of ground water resource impacts. The results of the three-dimensional MODFLOW modeling showed that the drawdown effect on the water table of the proposed wells for the Tropical Farms WTP would be unlikely to cause any adverse effect on typical wells used by homeowners, even if the latter were located within the same small “square” as one of the County’s wells. Prior to the commencement of the operation of Well No. 10 by the County, the water level in the fishing pond on the Slusher property would vary only a few inches up or down during the course of a typical year. After the County began to operate County Well No. 10, Mr. Slusher observed and videotaped much greater variations in the water level in the fishing pond on his property. After County Well No. 10 began to operate, the pond water level dropped to the extent that it would become virtually empty of water from time to time. At other times, however, the fishing pond would refill with water, such as in September of 1999, and in August of 2001. When the water in Mr. Slusher's pond gets very low, it has an adverse impact on the fish in the pond; the fish die because they have insufficient water. Mr. Slusher has not done anything over the years since the operation of County Well No. 10 began to attempt to prevent the variations in the water level of the fishing pond, or to mitigate the occurrence of such variations. The County (together with the rest of southern Florida) has experienced several periods of severe drought over the past few years. Yet other “ponds” on other properties in the same neighborhood as the Slusher property have not experienced the significant variance in water level that has occurred in the fishing pond on the Slusher property since the County began drawing water from Well No. 10. The County does not operate Well No. 10 continuously. Rather, it has attempted to reduce its use of the well. SFWMD has never issued any notice to the County that any mitigation was required on the Slusher property pursuant to the limiting conditions of the water use permit. The County does not dispute that its operation of Well No. 10 has contributed to a drawdown in the level of the water table in the surrounding area, nor that such a drawdown has contributed to the variance in the water level in the pond on the Slusher property. Indeed, the drawdown of the water table generally was fully anticipated and predicted in the materials submitted by the County to SFWMD. The use of County Well No. 10 to draw water from the surficial aquifer is not the only factor contributing to the variances in the water level of the fishing pond on the Slusher property. Evaporation and natural variances in the level of the water table also contribute to changes in the water level of the fishing pond. Bentonite is a naturally occurring clay that is mined for a variety of uses, including the “lining” or “waterproofing” of reservoirs, lagoons, ponds, ditches, and other man-made bodies of water in order to seal them and to prevent or minimize seepage or percolation of the water into the ground. Even repeated wetting and drying of the clay does not reduce its effectiveness. Bentonite is widely used and has not been found to have any harmful or toxic effects on either human beings or wildlife. In some applications, bentonite clay is a superior lining material when compared to a man-made liner, such as a plastic or polymer sheet. In a small scale application where the volume of water in a lined pond is relatively low, a man- made liner could be forced away (“balloon up”) from the bottom of the pond by the pressure of a rising natural water table. Lining the pond on the Slusher property with Bentonite (or some similar clay) would create a virtually impervious layer that would separate the water in the pond on the Slusher property from the surrounding water table. With such a lining in place, County Well No. 10 would have no significant effect on the water level of the pond. The water level in the pond on the Slusher property could also be stabilized at or near its normal level prior to the operation of County Well No. 10 by installation of a water supply that would add water to the pond whenever the pond dropped below a specified level. Mr. Slusher first complained to the County about the effect of the County’s operation of Well No. 10 in 1997, when he spoke with Jim Mercurio, a County water utilities employee. Mr. Slusher also complained at about the same time to SFWMD, which resulted in a “field investigation” in September 1997. At that time, Mr. Slusher complained about the lowering of the water level in the pond on his property, but specifically denied any adverse effect on the water from his residential water well. Mr. Slusher began to complain about the water quality and water pressure in his residential water well sometime in 2000. The water flowing from Mr. Slusher's residential water well now has an unpleasant odor, taste, and color, and the water causes rust stains. The water pressure of the water flowing from Mr. Slusher's residential water well is less than it was before the construction of County Well No. 10. The rust stains, odor, taste, and color are all due to iron oxidation of the water drawn from the well on the Slusher property. The County regularly experiences similar problems with iron oxidation in the water that it draws from its own wells in the same area as the Slusher property, which the County must treat at the Tropical Farms WTP. The problem of iron oxidation (and accompanying odor and taste deficiencies) in the water is thus not unique to the water drawn from the well on the Slusher property. Iron oxidation in well water is not harmful to human beings. The evidence in this case does not include any evidence of any testing of the water quality of the water coming from the Slusher residential well. Similarly, there is no persuasive evidence as to the current condition of the sub- surface portions of the Slusher residential well. Further, the evidence regarding the cause of any deterioration of the water quality and/or the water pressure of the Slusher residential water well is both anecdotal and speculative, and is not a persuasive basis for determining the cause of any deterioration of the water quality and/or water pressure of the subject residential well. Specifically, the evidence is insufficient to establish that the water quality and water pressure deterioration complained of by Mr. Slusher are a result of the operation of County Well No. 10. Such deterioration could be caused by other circumstances or conditions, including the uninspected sub-surface condition of Slusher's residential water well. The water quality and water pressure problems currently experienced by Mr. Slusher could be minimized or eliminated by connecting his residence to the residential water supply system operated by the County. A branch of the County's public water system already exists in Mr. Slusher's neighborhood within a few hundred feet of his property. The application and information provided to SFWMD by the County were determined by SFWMD to provide “reasonable assurances” that existing legal users would not be adversely affected by the proposed wells or water treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governing Board of the South Florida Water Management District enter a final order issuing Water Well Construction Permit No. SF032696B and re- issuing Water Use Permit No. 43-00752W to Martin County, subject to the general and special conditions set forth therein. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 31st day of May, 2002. COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. 618 East Ocean Boulevard, Suite 5 Post Office Box 1197 Stuart, Florida 34995-1197 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issue in this case is whether Water Use Permit (WUP) Application Number 20009478.005 meets the conditions for issuance as established in Section 373.223, Florida Statutes (2001), Florida Administrative Code Rule 40D-2.301 (April 2001), and the District’s Basis of Review for Water Use Permit Applications.
Findings Of Fact The Parties Petitioner, Alan Behrens, owns real property and a house trailer located at 4070 Southwest Armadillo Trail, in Arcadia, Florida. Behrens uses a two-inch well as the primary source of running water for his trailer. Boran and his family operate a ranch and sod farm in Arcadia, Florida, under the limited partnership of Boran Ranch and Sod, Ltd. Boran uses several different on-site wells to irrigate the farm. See Findings 12-17, infra. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. Permit History Boran’s property is a little over 1,000 acres in size, on which he has raised cattle and grown sod for approximately the past four years. Before Boran owned the property, its prior occupants used the land for growing fall and spring row crops (primarily tomatoes). Boran's cattle and sod farm uses less water than was used by previous owners and occupants. In 1989, the original permit holders could make annual average daily withdrawals of 309,000 gallons but also were allowed a maximum daily withdrawal of 6,480,000 gallons. In 1992, the permitted withdrawals increased to an annual average daily quantity of 2,210,000 gallons, with a peak monthly limit of 3,596,000 gallons per day. On December 14, 1999, Boran received an agricultural water use permit (WUP No. 20009478.004) from the District. This current existing permit expires on December 14, 2009. The current permit grants Boran the right to withdraw groundwater for his agricultural use in the annual average daily quantity of 1,313,000 gallons, and with a peak month daily quantity of 3,177,000 gallons. On September 11, 2000, Boran filed an application to modify his existing water use permit. Modification of Boran's existing permit does not lengthen the term of the permit, and the scope of the District's review was limited to those features or changes that are proposed by the modification. The proposed modification would allow Boran to increase his annual average daily quantity by 175,000 gallons, and increase the peak month daily quantity by 423,900 gallons, for the irrigation of an additional 129 acres of sod. With the proposed increase, the new annual average daily quantity will be 1,488,000 gallons, and the new peak month daily quantity will be 3,600,900 gallons. The proposed modification also provides for the construction of an additional well (DID #6) on the southeastern portion of property, which will withdraw groundwater from the upper Floridan aquifer. The proposed agency action also entails a revision of the irrigation efficiency rating for the entirety of Boran Ranch. Irrigation efficiency refers to the ability to direct water to its intended target, which in this case means the root zone of the sod, without losing water to evaporation and downward seepage. Under the proposed permit modification, Boran will increase the entire farm’s water efficiency from 65 percent to 75 percent. As discussed further in the Conditions for Issuance section infra, the District's AGMOD modeling program uses this efficiency rating as part of its determination of the appropriate quantities for withdrawals. The higher the efficiency rating, the less water received under a permit. Because the efficiency rating increased, the application rate for water decreased from 42" per year to 36.4" per year for the entire Boran Ranch. Boran's Wells There are six well sites (labeled according to District identification numbers, e.g., DID #3) existing or proposed on Boran’s property. DID #1 is an eight-inch well located in the northeastern portion of the property. DID #1 provides water solely from the intermediate aquifer. DID #2 is an eight-inch well located in the middle of the property. DID #2 withdraws water from both the intermediate and upper Floridan aquifers. Both DID #1 and DID #2 were installed in 1968, and predate both the first water use permit application for the farm and the District's water use regulatory system. DID #4 is a twelve-inch well located in the north- central part of the property and solely taps from the upper Floridan aquifer. DID #4 had already been permitted and constructed as of the date of the proposed modification application at issue in this case. DID #3 and DID #5 are twelve-inch wells which have already been permitted for the southern and northern portions of the property, respectively, but have not yet been constructed. Both wells will withdraw water only from the upper Floridan aquifer. DID #6 is a proposed twelve-inch well to be located on the southeastern portion of the property and to irrigate an additional area of sod. DID #3, #5, and #6 will all be cased to a depth of approximately 540 feet, and only open to the upper Floridan aquifer to a depth of approximately 940 feet. By casing the well with pipe surrounded by cement, these wells will be sealed off to all aquifers above 540 feet, including the intermediate aquifer. All the wells on the property are used to irrigate sod. The wells have artesian flow, but utilize diesel pumps to provide consistent flow pressure year-round throughout the fields (some of which can be a mile and a half from a well). Since running the pumps costs money, there is an economic incentive not to over-irrigate. In addition, over-irrigation can lead to infestations of fungi and insects, and eventually cause the grass to rot and die. As a result, the fields receive irrigation only when dry areas in the fields appear and the grass begins to wilt. Boran Ranch Operations and Management Practices Boran Ranch primarily grows three kinds of grasses: St. Augustine Floratam; St. Augustine Palmetto; and Bahia. (Boran also is experimenting on a smaller scale with common paspalum and common Bermuda.) The Bahia grass, which is what also grows in the ranch's cattle pasture, does not require irrigation; the St. Augustine grasses are less drought- resistant and require irrigation at times. The majority of the sod sold to residential installers (who ordinarily work for landscape companies) is a St. Augustine grass. Commercial or governmental roadside installations favor Bahia. Currently, Boran sells more Bahia than St. Augustine. But market demand determines which types of grass are produced on the farm. As residential use and demand for St. Augustine in southwest Florida increases, so would the proportion of the farm used for growing St. Augustine grass. Boran grows sod year-round because of a large demand for the product in Ft. Myers and Cape Coral, and to a lesser extent in Punta Gorda and Port Charlotte. Sod helps control erosion and is considered to have aesthetic value. There also was some evidence that sod lowers the ambient temperatures, as compared to bare dirt; but the evidence was not clear how sod would compare to other ground cover in lowering temperatures. When subsurface seepage irrigation is being used, a sod field must be disked and "laser-leveled" to the proper elevation, with a slight slope created in the field to help ensure proper irrigation and drainage, before it can be used for sod production. The fields are laser-leveled before the irrigation system is installed and the crop is planted. The perforated irrigation supply lines of Boran Ranch’s subsurface irrigation system, also known as the "tile," run the opposite direction of the slope of the field and perpendicular to the main irrigation line. Once the subsurface irrigation system is installed, the field receives sprigs of sod, which are then watered and "rolled" to pack them into the ground. Approximately three months after a field has been rolled, the new sod is then periodically fertilized, sprayed and mowed. Sod takes approximately one year to grow before it may be harvested. The sod at Boran Ranch is harvested via tractor with a "cutter" on its side, which cuts underneath the grass, lifts it up onto a conveyor belt, and then onto a pallet for shipping. There are four different types of irrigation systems used for growing sod in Florida: (1) pivot systems which rely on sprinklers attached to overhead lines that rotate around a fixed point; (2) overhead rain guns which utilize motorized hydraulic pressure to spray a field; (3) above-ground seepage; and (4) subsurface irrigation systems (which can also be used to drain excess water from fields during large rain events). The most efficient irrigation system used for sod in Florida is the subsurface irrigation system. Boran Ranch first started the subsurface irrigation system approximately four years ago. Since that time, Boran Ranch has converted almost all its fields to the subsurface irrigation system, at a cost of approximately $1150 to $1350 per acre. As a result of this conversion process, Boran Ranch now uses less water per acre of sod. The subsurface irrigation system delivers water from a well to a water control structure (also known as the "box") via the imperforated main irrigation line. The perforated lines of the "tile" are connected to this main irrigation line at a 90-degree angle. The largest portion of the "box" sits underground. Once the water in the main irrigation line reaches the "box," water builds up behind removable boards contained in the box, creating the backpressure which forces water out into the tile. Water flows out from the tile to maintain the water table level at or near the root zone of the sod. Subsurface irrigation systems only function on property that has a hardpan layer beneath the soil. The hardpan layer acts as a confining unit to minimize the downward seepage of water, thereby allowing the subsurface irrigation system to work efficiently. Behrens questioned whether Boran Ranch has the necessary hardpan based on Todd Boran's reliance on hydrogeologists for this information. But the expert testimony of Boran's hydrogeology consultant and the District's hydrogeologist confirmed Todd Boran's understanding. Typically, the highest board in the box has the same height as the top of the field. Once the water level inside the box surpasses the height of the last board, water will spill over that board into the remainder of the box and then out another main irrigation line to the next box and set of tiles. By removing some of the boards in the box, Boran can bypass irrigating certain sections of his fields in favor of other areas. Excess water from the fields flows into field ditches which lead to wetlands on the property. If water leaves the wetlands during episodes of heavy rains, it flows downstream to the Peace River. Conditions for Issuance Boran Ranch is located in southwestern DeSoto County, in an area designated by the District as the Southern Water Use Caution Area (SWUCA). The District created the SWUCA, which covers 5,000 square miles, after first determining that the groundwater resources of eastern Tampa Bay and Highlands Ridge regions were stressed and creating the Eastern Tampa Bay Water Use Caution Area (ETBWUCA) and Highlands Ridge Water Caution Area (HRWUCA). Both the ETBWUCA and the HRWUCA are contained within the larger boundaries of the SWUCA. Within the ETBWUCA is an area along the coasts of portions of Hillsborough, Manatee, and Sarasota counties known as the Most Impacted Area (MIA). Special permitting rules exist for new projects located within the ETBWUCA, HRWUCA, and MIA, but not within the remainder of the "undifferentiated" SWUCA. Boran Ranch is located in this "undifferentiated" area of the SWUCA. Behrens took the position that Boran should not be permitted any additional water use until special permitting rules are promulgated for the "undifferentiated" SWUCA. But Behrens could cite no authority for such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. The evidence proved that the quantities authorized by the proposed modification are necessary to fulfill a certain reasonable demand, as required by Rule 40D- 2.301(1)(a). Boran sought additional water quantities through the permit modification application in order to irrigate an additional 129 acres of its sod farm. The application reflects a need for additional water, associated with additional acreage added to the farm. Boran used the District's AGMOD spreadsheet model, which is based on a mathematical methodology known as the modified Blainey-Criddle method, to determine the reasonable quantities for Boran's specific agricultural use. AGMOD inputs into its computations the following variables: (1) geographic location of the proposed use; (2) type of crop grown; (3) irrigation (efficiency); (4) pump capacity; (5) soil type; and (6) number of acres to be irrigated. AGMOD is a generally accepted tool used for determining the allocation of water quantities for agricultural use. In the instant case, the AGMOD calculations incorporated 87 years of rainfall data and its results reflect the quantities necessary in the event of a two-in-ten-year drought. Similarly, the AGMOD calculations in the instant case take into account the change in irrigation efficiency from 65 percent to 75 percent. Behrens suggested that Boran should not be allowed to use any more water until minimum flows and levels are established for the intermediate aquifer in the vicinity. However, Behrens could cite no authority for imposing such a moratorium. Meanwhile, the more persuasive evidence was that no such moratorium would be reasonable or appropriate. See Finding 49 and Conclusion 86, infra. Behrens also suggested that inputs to AGMOD should assume more Bahia and less St. Augustine grass so as to reduce the resulting amount of reasonable demand. He also suggested that Boran's reasonable demand should not take into account possible future increases in St. Augustine grass production based on possible future market demand increases. But it does not appear that the District requires an applicant to differentiate among various types of grasses when inputting the crop type variable into the AGMOD model for purposes of determining reasonable demand. See Water Use Permit Information Manual, Part C, Design Aids (District Exhibit 2C), Table D-1, p. C4-9. The evidence proved that Boran demonstrated that the proposed use will not cause quantity or quality changes that adversely impact the water resources, on either an individual or cumulative basis, including both surface and ground waters, as required by Rule 40D-2.301(1)(b). Data from water quality monitoring reports indicate that water quality at Boran Ranch and in the region has remained fairly consistent. There were no statistically significant declining trend in water levels in the region. Behrens admitted that water quality in his well has been consistently good. One apparent increase in total dissolved solids and chlorides in DID #1 was explained as being a reporting error. Boran inadvertently reported some findings from DID #2 as coming from DID #1. Until the error was corrected, this made it appear that water quality from DID #1 had decreased because, while DID #1 is open only to the intermediate aquifer, DID #2 is open to both the intermediate aquifer and the upper Florida aquifer, which has poorer water quality. Both Boran and the District used the MODFLOW model, a generally accepted tool in the field of hydrogeology, to analyze withdrawal impacts. The purpose of modeling is to evaluate impacts of a proposed use on the aquifer tapped for withdrawals, and any overlying aquifers including surficial aquifers connected to lakes and wetlands. MODFLOW uses mathematics to simulate the different aquifer parameters for each production unit determined from aquifer performance testing. During the permit application process, both Boran and the District conducted groundwater modeling by simply adding the proposed new quantities to models developed for Boran's permit application in 1999. The models were comparable but not identical; the District's model was somewhat more detailed in that it separated predicted drawdowns into more aquifer producing units. Both models satisfied the District that the proposed modification would have no adverse impact on water resources. After the challenge to the Proposed Agency Action, the District created a new model to assess the impact of only the additional quantities requested by the modification. This new model added some aquifer parameters obtained from Regional Observation Monitoring Program (ROMP) well 9.5, which was constructed very close to the Boran Ranch in 1999. (Information from ROMP 9.5 was not available at the time of the earlier models.) The new model allowed the District to limit the scope of its review to those changes proposed by the modification. The results of this model show that impacts are localized and that most are within the confines of Boran’s property. The greatest impacts resulting from the proposed modification would occur in the Suwannee Limestone producing unit (the upper-most portion of the upper Floridan aquifer), the unit to be tapped by DID #6. The confining unit above the upper Floridan aquifer in this region of DeSoto County is approximately 300-400 feet thick, and impacts on the intermediate aquifer, which is above this confining unit, are much less. When the District's new model was run for peak monthly withdrawals (423,900 gpd for 90 days), the model's 1.0 foot drawdown contour was contained within the confines of Boran’s property, and the 0.1 foot drawdown contour extended only approximately two miles out from the well node of DID #6. Atmospheric barometric changes can cause fluctuations in aquifer levels that exceed a tenth of a foot. As minimal as these modeled impacts appear to be, they are larger than would be expected in reality. This is because, for several reasons, MODFLOW is a conservative model- -i.e., impacts modeled are greater than impacts that would be likely in actuality. First, MODFLOW is a mathematical, asyntopic model. This means it models very gradually decreasing drawdowns continuing over long distances as predicted drawdowns approach zero. This tends to over-predict impacts at greater distances from the withdrawal. In reality, the heterogeneity or discontinuity of confining units cuts down on drawdown effects. The steepest drawdowns occur at a well node and then decline relatively rapidly with distance. Second, several model inputs are conservative. The annual average quantities for water use generated under the AGMOD methodology is based on a two-in-ten-year drought year. The peak month quantity applies to the three driest months within the two-in-ten-year drought period. The MODFLOW model applies this 90-day peak usage continuous pumping under AGMOD and conservatively assumes no rainfall or recharge to the aquifers during this period. Both of these are extremely conservative assumptions for this region of Florida. The District's determination of reasonable assurances "on both an individual and a cumulative basis" in water use permit cases only considers the sum of the impact of the applicant's proposal, together with all other existing impacts (and perhaps also the impacts of contemporaneous applicants). The impacts of future applicants are not considered. This differs from the cumulative impact review under Part IV of Chapter 373 (environmental resource permitting). See Conclusions 80-84, infra. Modeling is a component of the District’s assessment of impacts on a cumulative basis. In addition, the District reviewed and assessed hydrographs of the potentiometric surface from nearby ROMP wells, water quality data, permit history of the Boran site, and regional hydrologic conditions. The hydrographs represent the accumulation of all impacts from pumpage in the area and show stable groundwater levels in the region. Water quality also is stable, with no declining trends. The permit history indicates that permitted withdrawals on the Boran site have declined. For all of these reasons, the evidence was that Boran's proposed withdrawals would create no adverse impacts on water resources on a cumulative basis. The evidence proved that the proposed agency action will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources, as required by Rule 40D-2.301(1)(c). Due to the significant confinement between the source aquifers and the surficial aquifer and surface water bodies, the modeling results show no adverse impact to the surficial aquifer, and no adverse impact to wetlands, streams, estuaries, fish and wildlife, or other natural resources. The evidence was that there are no minimum flows or levels set for the area in question. Furthermore, Standard Condition 9 of the Proposed Agency Action requires Boran to cease or reduce withdrawals as directed by the District if water levels should fall below any minimum level later established by the District. The more persuasive evidence was that the requirements of section 4.3 of the District's Basis of Review have been met. (A moratorium on water use permits until establishment of minimum flows and levels would be neither reasonable nor appropriate.) The evidence proved that the proposed use will utilize the lowest water quality he has the ability to use, as required by Rule 40D-2.301(1)(e), because the new withdrawals are exclusively from the upper Floridan aquifer, which has poorer quality than the intermediate aquifer. Deeper aquifers cannot be used because the water quality is poorer than the upper Floridan aquifer, and it is technically and economically infeasible to use it for agricultural purposes. Behrens suggests that Boran should be required to discontinue all withdrawals of higher quality water from the intermediate aquifer as part of the proposed modification. While an offer to do so might be welcomed (as was Boran's offer to install subsurface seepage irrigation and apply the higher efficiency percentage to the entire Boran Ranch), Behrens could cite no authority for imposing such a condition; and the more persuasive evidence was that imposition of such a condition would be neither reasonable nor appropriate under the circumstances of this case. The evidence proved that the proposed use will not significantly induce saline water intrusion, as required by Rule 40D-2.301(1)(f), because the model results show that the drawdown contours do not approach anywhere near the ETBWUCA or MIA areas. Boran's Ranch is located approximately 21 miles from the MIA boundary and 10.8 miles from ETBWUCA boundary. Further, Boran must monitor the water quality in DID #1 and DID #4 and document any changes in water quality as a result of the withdrawals. The parties have stipulated that the proposed use meets the requirements of Rule 40D-2.301(1)(g) and will not cause pollution of the aquifer. The evidence proved that the proposed use will not adversely impact offsite land uses existing at the time of the application, as required by Rule 40D-2.301(1)(h), because the modeling showed no impact to the surficial aquifer or land use outside Boran Ranch. The confinement between the point of withdrawal and the surface is too great to impact offsite land uses in the instant case. The evidence proved that the proposed use will not adversely impact any existing legal withdrawal, as required by Rule 40D-2.301(1)(i), based on the ROMP hydrographs and modeling showing minimal drawdowns outside the boundaries of Boran Ranch. Behrens claims that Boran's proposed modification will adversely impact his well, which is approximately 3.5 miles northeast of the northeast corner of the Boran property and over four miles away from DID #6. But the greater weight of the evidence was to the contrary. (The wells of other DCAP members were even further away, making impacts even less likely.) Behrens has no independent knowledge of the depth of his two-inch well but believes it is approximately 150 feet deep, which would place it within the intermediate aquifer. In view of the consistent quality of Behrens' well water, and the nature of his well construction, it is most likely that Behrens' well does not penetrate the confining layer between the intermediate aquifer and the upper Floridan aquifer. If 150 feet deep, Behrens' well would not extend into the deepest producing unit of the intermediate aquifer (PZ-3); rather, it would appear to extend into the next deepest producing unit of the intermediate aquifer (PZ-2). But it is possible that Behrens' well cross-connects the PZ-2 and the shallowest producing unit of the intermediate aquifer (PZ-1). (The evidence did not even rule out the possibility that Behrens' well also is open to the surficial aquifer.) Assuming that Behrens' well is open to the PZ-2 only, conservative MODFLOW modeling predicts no impact at all from the proposed modification. (Behrens' well would be outside the zero drawdown contour.) Meanwhile, hydrographs of PZ-2 from nearby ROMP wells show marked fluctuations (five-foot oscillations) of the potentiometric surfaces in producing units of the intermediate aquifer. These fluctuations appear to coincide with increased pumping out of the intermediate aquifer. These fluctuations in the potentiometric surface are not being transmitted up from the upper Floridan aquifer or down from the surficial aquifer. The potentiometric surface in those aquifers do not exhibit matching fluctuations. It appears that the intermediate aquifer is being impacted almost exclusively by pumping out of that aquifer. (This evidence also confirms the integrity of the relatively thick confining layer between the intermediate and the upper Floridan aquifers, which serves to largely insulate Behrens' well from the influence of pumping out of the upper Floridan.) Behrens seems to contend that, in order to determine adverse impacts on a cumulative basis, the impact of Boran's entire withdrawal, existing and proposed, which is modeled conservatively at approximately 0.3 feet, must be considered. But the District considers an adverse impact to an existing legal withdrawal to consist of an impact large enough to necessitate modification to the producing well in order for it to continue to function as intended. The greater weight of the evidence was that the well on Behrens' property was not designed to be a free-flowing well but was designed to use a pump to operate as intended. At the time Behrens purchased his property, there was a well and a non-functioning pump on the property. Even at the beginning of his ownership, he did not always have running water without a functioning pump. In approximately 1986 or 1987, Behrens installed a new electric pump because it allowed the well to produce more water. After installation of the pump, Behrens raised his trailer an additional five feet (to guard against flooding) which caused it to be approximately ten feet high, meaning the water had to travel that much farther against gravity to reach Behrens' faucets. For most of the time that he has owned the property, Behrens has used a pump on the well. Behrens installed a check valve to allow him to turn off the pump. Sometimes during storm or flood conditions, electric power failed or was cut off, and Behrens was forced to rely solely on artesian flow, which was sometimes adequate in flood conditions during the rainy season. At other times when artesian flow was adequate, Behrens would turn off the pump and rely solely on artesian flow. But it also was sometimes necessary for Behrens to use the pump to get adequate water flow. During the summer of 2001, Behrens' pump failed, and he had to rely solely on artesian flow. As in prior years, artesian flow was sometimes inadequate. In order to be able to get at least some artesian flow for the maximum amount of time, Behrens lowered the spigot on his well by about two feet. Although Behrens is aware that the iron casing of his well could corrode over time, he has never called a licensed well driller or other contractor to inspect his well. Behrens did not test his own well for possible blockage that would result in a lower yield. Furthermore, Behrens admits that his whole outdoor water system needs to be completely replaced. The evidence proved that the proposed use will incorporate water conservation measures, as required by Rule 40D-2.301(1)(k), based on the water conservation plan submitted to the District, installation of a state-of-the-art irrigation system, increase in efficient use of the water, and decrease in the application rate. (Behrens' arguments that Boran has been allowed to use too much water and his question as to the existence of hardpan underlying Boran's fields already has been addressed. See Findings 27 and 35, supra.) The parties have stipulated that Boran has demonstrated that the proposed use will incorporate reuse measures to the greatest extent practicable, as required by Rule 40D-2.301(1)(l). The evidence proved that the proposed use will not cause water to go to waste, as required by Rule 40D-2.301(m), because the irrigation method is the most efficient system that is economically and technically feasible available for sod. (Behrens' question as to the existence of hardpan underlying Boran's fields already has been addressed. See Finding 27, supra.) The evidence proved that the proposed use will not otherwise be harmful to the water resources of the District, as required by Rule 40D-2.301(1)(n), based on the review of all other permit criteria. Propriety of Behrens' Purpose Behrens did not review the District's permit file on Boran's application before he filed his petition. The evidence suggested that he traveled to the District's Sarasota office for that purpose but found on his arrival that the complete permit file was not available for inspection there. Because of the filing deadline, he did not find time to make another attempt to review the permit file of record before he filed his petition. Behrens also did not contact Boran, the District or anyone else with any questions about the proposed agency action before filing his petition. He also did not visit Boran’s property, and made no inquiry as to the irrigation system employed by Boran. Behrens also did not do any additional legal research (beyond what he had done in connection with other water use permit proceedings) before filing his petition. Behrens believed he had all the information he needed to file his petition. Behrens has previously filed at least one unsuccessful petition challenging the District’s issuance of a water use permit. See Behrens v. Southwest Fla. Water Management Dist., DOAH Case No. 00-4801 (DOAH Jan. 29, 2001). DCAP, with Behrens acting as its president, has previously filed at least three unsuccessful petitions challenging the District’s issuance of a water use permit. See, e.g., DeSoto Citizens Against Pollution, Inc. v. Farmland Hydro Limited Partnership, DOAH Case No. 02-232 (Southwest Fla. Water Man. Dist. June 25, 2002); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01- 3056 (DOAH Aug. 22, 2001); DeSoto Citizens Against Pollution, Inc. v. Southwest Fla. Water Management Dist., DOAH Case No. 01-2917 (DOAH Sept. 24, 2001). However, none of those proceedings involved a project at the Boran site. It is found that, under the totality of circumstances, Behrens' and DCAP's participation in this proceeding was not for an improper purpose--i.e., not primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of Boran's permit modification. While a reasonable person would not have raised and pursued some of the issues raised by Behrens and DCAP in this proceeding, it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose. It appears that Behrens based his standing in part on the requirement in Rule 40D-2.301(1)(i) that Boran provide reasonable assurances that the proposed use will not adversely impact an existing legal withdrawal to be provided "on both an individual and a cumulative basis.” (Emphasis added.) Not unreasonably, Behrens argued that this requirement allowed him to base his standing on alleged injuries from all of Boran's withdrawals, existing and proposed, which would create a 0.3- foot drawdown on his well. While his argument is rejected, it cannot be found to be frivolous or made for improper purpose. Behrens' argument that Boran did not meet Rule 40D- 2.301(1)(i) was based on the 0.3-foot drawdown and his position that his well was designed to be artesian free- flowing. While Behrens' proposed finding was rejected, the position he took is not found to be frivolous or taken for improper purpose. Several other arguments made and positions taken by Behrens have been rejected. See Findings 27, 34, 35, and 51, supra, and Conclusions 86-87, infra. But they cannot all be found to have been frivolous or made and taken for improper purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter an order granting Boran’s water use permit application number 20009478.005; and denying the motions for attorney's fees and costs under Section 120.595(1), Florida Statutes. Jurisdiction is reserved to enter a final order on the part of the motions for sanctions under Section 120.569(2)(e). DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 29th day of July, 2002. COPIES FURNISHED: Alan R. Behrens, President DeSoto Citizens Against Pollution, Inc. 4070 Southwest Armadillo Trail Arcadia, Florida 34266 Mary Beth Russell, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether proposed Water Use Permits Nos. 20012236.000 (the Potable Water Permit) and 20012239.000 (the Irrigation Permit) and proposed Environmental Resource Permit No. 43020198.001 (the ERP) should be issued by the Respondent, Southwest Florida Water Management District (the District).
Findings Of Fact The Parties The individual Petitioners, Farnsworth, Roop, and Varnum are all Florida citizens and residents of Sumter County. None of the individual Petitioners offered any evidence relating to direct impacts that the ERP would have on their property. With respect to the Potable Water and Irrigation Permits, anecdotal testimony was presented by Petitioners and Wing and Weir relating to well failures and sinkholes in the area. Two Petitioners, Roop and Varnum, live in close proximity to the property encompassed by the three permits. Petitioner Farnsworth’s property is approximately three and a half miles from the project boundary. Wing and Weir live approximately four and a half to five and 18 miles from the project site, respectively. SCAID is a Florida not-for-profit corporation that has approximately 130 members. Farnsworth, the president of SCAID, identified only Roop and Varnum as members who will be directly affected by the activities to be authorized by the permits. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. The Utility and the Authority are limited liability companies, of which the Villages Inc. is the managing partner. The Villages Inc. is a Florida corporation. The Utility, which will serve as a provider of potable water, is regulated by the Public Service Commission, while the Authority which will provide irrigation water, is not. The Villages Inc., Development The Villages Inc. is a phased, mixed use, retirement community, which is located at the intersecting borders of Lake, Marion, and Sumter Counties. Development has been on going since at least 1983, with a current planning horizon of the year 2019. Currently, there are 15,362 constructed dwelling units in the built-out portion of the Villages Inc. that are located in Lake County and the extreme northeast corner of Sumter County. The portion located in Marion County is 60 percent complete, with 750 homes completed and another 600 under construction. Approximately another 22,000 residences are planned for development in Sumter County by the year 2012, with an additional 10,200 by the year 2019. However, the Potable Water and Irrigation Permits are only for a six-year duration, and the ERP has a duration of only six years. None of the permits authorize development activities beyond that time frame. Generally speaking, the three permits at issue include an area owned by the Villages Inc. that lies in northeast Sumter County South of County Road 466 and North of County Road 466A. However, it is not projected that this entire area will be built-out during the terms of three proposed permits. Area Hydrology and Topography In the area of the Villages Inc., there is a layer of approximately five to ten feet of sand at the land surface, which is underlain by ten to 70 feet of a clayey sand. Both of these constitute the surficial aquifer and are extremely leaky, allowing water to percolate easily through to a lower layer. Except in the vicinity of Lake Miona, there is no water in the surficial aquifer except after rainfall events. The clayey sand layer is underlain by the Upper Floridan, a limestone unit. The top of this limestone layer ("the top of the rock") occurs at fluctuating depths of between 30 and 70 feet. At approximately 350 to 400 feet below the land surface, there begins a transition to a denser unit that serves as a confining layer between the Upper Floridan production zone and the Lower Floridan production zone. This confining layer, which was confirmed by drilling at three locations in the Villages Inc. is approximately 150 feet thick in the area of the Villages Inc. Another transition, this time to a less dense formation, begins at approximately 550 to 600 feet, which is considered the top of the Lower Floridan production zone. While testing conducted on the project site indicated almost no leakage between the Upper and Lower Floridan production zones, it is generally known by experts that there is some exchange of water between the two layers. Both the Upper and the Lower Floridan contain water that meets potable water standards and both are considered water production zones. The water quality of the two zones is not significantly different. The project area is prone to karst activity, that is, the formation of sinkholes. Sinkholes are formed as a result of the collapse of the overburden above subsurface cavities which have been formed through a very gradual dissolution of limestone, thus resulting in a "sink" at the land surface. Surface water bodies in the area include Lake Miona, Black Lake, Cherry Lake, and Dry Prairie, as well as several other small wetlands. The Potable Water and Irrigation Permits The potable water permit is for the withdrawal from the Upper Floridan Aquifer of 1.164 million gallons of water per day (MGD), on an annual average, for potable use in residences and both commercial and recreational establishments. It also limits the maximum withdrawal during peak months to 2.909 MGD. The Irrigation Permit is for the withdrawal from the Lower Floridan Aquifer of 2.850 MGD, on an annual average, for use in irrigation. The peak month usage rate permissible under the proposed permit would be 9.090 MGD. Water withdrawal under the Irrigation Permit will be used for the irrigation of residential lawns, common areas, commercial landscaping, and golf courses. Modeling of Drawdowns In assessing the impacts of proposed water withdrawals from an aquifer, District personnel considered effects on the aquifers and on-surface water features in the area. Computer- generated models of the predicted effects of the Potable Water and Irrigation Permits withdrawals provided one of the principal bases for this assessment. The primary geologist assigned to review the permit applications reviewed two of the models submitted by the Utility and the Authority (jointly the WUP Applicants) and ran one personal model of her own in order to predict the effects of the proposed withdrawals on the aquifers, as well as on any wetlands and other surface water bodies. In particular, the models predict both the vertical and horizontal extent to which the withdrawals may lower the level of water within the aquifers and in-surface waters under various conditions. One of the models submitted by the WUP Applicants predicted drawdowns during a 90-day period of no rainfall while the other predicted the impacts of the withdrawals over the life of the permits, considered cumulatively with the effects of withdrawals from the already-existing Villages' development in Sumter, Marion, and Lake Counties. The District’s geologist modeled the impacts of the withdrawals over the life of the permits and included the cumulative effects of all of the current Villages' withdrawals in Sumter County. All of these models included the combined effects of both the proposed Potable Water and the Irrigation Permits. Based upon these models, it is concluded that there will be no significant drawdowns as a result of the withdrawals authorized by the proposed water use permits. Specifically, the only predicted drawdown in the surficial aquifer (0.25 feet of drawdown) is in an area where there are no natural surface water features. Drawdown in the Upper Floridan is predicted at between 0.1 and 0.2 feet, while the drawdown in the Lower Floridan is predicted at a maximum of 1.5 feet. These minor drawdowns are not expected to cause any adverse impacts. Transmissivity is the rate at which water moves horizontally through the aquifer. In areas with high transmissivity, the results of water withdrawals from an aquifer will generally be low in magnitude, but broad in lateral extent. Water withdrawals from areas of low transmissivity will result in cones of depression that are more limited in lateral extent, but steeper vertically. The use of too high a transmissivity rate in a model, would overpredict the horizontal distance of the drawdowns caused by withdrawals, but would underpredict the vertical drawdown in the immediate vicinity of the withdrawal. Conversely, use of too low a transmissivity would over-predict the effects in the immediate vicinity of the withdrawal but underpredict the lateral extent of the drawdown. The WUP Applicants’ models used a transmissivity value for the Lower Floridan Aquifer of 100,000 feet squared per day ("ft.2/d'). The WUP Applicants’ consultant derived the transmissivity values from a regional model prepared by the University of Florida. The regional model uses a transmissivity value for the entire region of 200,000 ft.2/d for the Lower Floridan. While that transmissivity is appropriate for assessing large-scale impacts, on a more localized level, the transmissivity of the aquifer may be lower. Therefore, the WUP Applicants’ consultant met with District representatives and agreed to use a value half that used in the University of Florida model. A similar approach was used for the transmissivity value used in modeling effects in the Upper Floridan. Notably, specific transmissivity values recorded in four wells in the Villages Inc. area were not used because two of these wells were only cased to a depth of just over 250 feet, with an open hole below that to a depth of 590 feet. Thus, the transmissivity measured in these wells reflect conditions in the confining layer at the immediate location of the wells - not the transmissivity of the Lower Floridan production zone. Further, site-specific information on transmissivity, measured during pump tests at individual wells, does not correlate well to the transmissivity of the aquifer, even at short distances from the well. Transmissivities measured at individual wells are used to determine the depth at which the pump should be set in the well, not to determine the transmissivity of the aquifer. Thus, the use of transmissivities derived from the regional model, but adjusted to be conservative, is entirely appropriate. Moreover, using a transmissivity in her modeling of the project impacts of 27,000 ft.2/d for the Lower Floridan Aquifer, the district geologist’s model predicted no adverse impacts. Leakance is the measure of the resistance of movement vertically through confining units of the aquifer. The leakance value used by the District for the confining layer between the Upper and Lower Floridan was taken from the University of Florida model. Tests conducted on the site actually measured even lower leakance values. Thus, the evidence establishes that the leakance value used in the WUP Applicants’ and the District’s modeling for the Floridan confining layer was reasonable and appropriate. Competent, substantial evidence also establishes that the leakance value used for Lake Miona was reasonable. The WUP Applicants submitted to the District substantial data, gathered over several years, reflecting the balance of water flowing into Lake Miona and the lake’s levels in relation to the potentiometric surface. This documentation verified the leakance value used for Lake Miona in the modeling. Finally, the District modeling used appropriate boundary condition parameters. The District modeling used what is known as the "constant head" boundary and assumes the existence of water generated off-site at the boundaries. Such a boundary simulates the discharge of the aquifer at a certain level. The use of constant head boundaries is an accepted practice. The modeling conducted on behalf of the District and the Applicants provides a reasonable assurances that the Potable Water and Irrigation Permits will not cause adverse water quality or quantity changes to surface or groundwater resources, will not cause adverse environmental impacts to natural resources, and will not cause pollution of the aquifer. Furthermore, because the predicted drawdowns are so insignificant, reasonable assurances have been provided that the withdrawals will not adversely impact existing off-site land uses or existing legal withdrawals. The modeling also provides reasonable assurances that the withdrawals will not be harmful to the water resources of the District. Moreover, monitoring requirements included in the proposed Potable Water and Irrigation Permits provide additional reasonable assurance that – should the withdrawal effects exceed those predicted by the modeling – such effects are identified and necessary steps are taken to mitigate for any potential impacts. The District has reserved the right to modify or revoke all or portions of the water use permits under certain circumstances. Specifically, the proposed Potable Water Permit requires a monitoring plan that includes the following pertinent provisions: There shall be no less than three control wetland and ten onsite wetland monitoring sites; A baseline monitoring report, outlining the current wetland conditions; * * * A statement indicating that an analysis of the water level records for area lakes, including Miona Lake, Black Lake, Cherry Lake, Lake Deaton and Lake Griffin, will be included in the annual report; A statement indicating that an analysis of the spring flow records for Gum Spring, Silver Spring, and Fenney Spring, will be included in the annual report; * * * Wildlife analyses for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods to determine success of the mitigation; A mitigation plan for potentially impacted wetlands, lakes, and adjacent property owner uses or wells, including methods and thresholds to determine success of the mitigation; An annual report of an analysis of the monitoring data . . . . Similar provisions are included in the proposed irrigation permit. The WUP Applicants, in conjunction with the District, have developed sites and methodologies for this monitoring. Reasonable Demand The water to be withdrawn under the proposed Potable Water Permit will serve 10,783 people. This total results from the simple multiplication of the number of residences to be built during the next six years (5,675) by the average number of residents per household (1.9). Those numbers are based upon historical absorption rates within the Villages Inc. development since 1983, an absorption rate that doubles approximately every five years. The Utility proposed a per capita use rate of 108 gallons per day for potable use only. District personnel independently verified that per capita rate, based upon current usage in the existing portions of the Villages Inc. and determined that the rate was reasonable. Based upon the population projections and the per capita rate, the District determined that there is a reasonable demand for the withdrawal of the amount of water, for potable purposes, that is reflected in the Potable Water Permit. The Utility has provided reasonable assurance regarding the Utility’s satisfaction of this permitting criterion. As to the irrigation permit, the Villages Inc. plans, within the next six years, to complete the construction of 1,911 acres of property that will require irrigation. The amount of water originally requested by the Authority for irrigation withdrawals was reduced during the course of the application process at the request of the District. The District determined the reasonable amount of irrigation water needed through the application of AGMOD, a computer model that predicts the irrigation needs of various vegetative covers. Since the Authority intends to utilize treated wastewater effluent as another source of irrigation water, the District reduced the amount of water that it would permit to be withdrawn from the Lower Floridan for irrigation. The District, thus, determined that the Authority would need 1.59 MGD annual average for recreational and aesthetic area irrigation and 1.26 MGD annual average for residential lawn irrigation, for a total of 2.85 MGD. The Villages Inc. also plans to accumulate stormwater in lined ponds for irrigation use. However, unlike its treatment of wastewater effluent, the District did not deduct accumulated stormwater from the amount of water deemed necessary for irrigation. This approach was adopted due to the inability to predict short-term rainfall amounts. The uncontroverted evidence of record establishes reasonable assurances that there is a reasonable demand for the amount of water to be withdrawn under the proposed irrigation permit. Conservation and Reuse Measures Both the Utility and the Authority applications included proposed measures for the conservation and reuse of water. The conservation plan submitted in conjunction with the irrigation permit application provides for control valves to regulate both the pressure and timing of irrigation by residential users; contractual restrictions on water use by commercial users; xeriscaping; and an irrigation control system for golf course irrigation that is designed to maximize the efficient use of water. In addition, in the proposed permits, the District requires the Utility and the Authority to expand upon these conservation measures through such measures as educational efforts, inclined block rate structures, and annual reporting to assess the success of conservation measures. The Authority also committed to reduce its dependence on groundwater withdrawals through the reuse of wastewater effluent, both from the on-site wastewater treatment facility and through contract with the City of Wildwood. Reasonable assurances have been provided that conservation measures have been incorporated and that, to the maximum extent practicable, reuse measures have been incorporated. Use of Lowest Available Quality of Water In addition to the reuse of treated wastewater effluent, the Authority intends to minimize its dependence on groundwater withdrawals for irrigation use through the reuse of stormwater accumulated in lined ponds. Thirty-one of the lined stormwater retention ponds to be constructed by the Villages Inc. are designed as a component of the irrigation system on-site. Ponds will be grouped with the individual ponds within each group linked through underground piping. There will be an electronically controlled valve in the stormwater pond at the end of the pipe that will be used to draw out water for irrigation purposes. These lined stormwater ponds serve several purposes. However, the design feature that is pertinent to the reuse of stormwater for irrigation is the inclusion of additional storage capacity below the top of the pond liner. No groundwater will be withdrawn for irrigation purposes unless the level of stormwater in these lined ponds drops below a designed minimum irrigation level. Groundwater pumped into these ponds will then be pumped out for irrigation. Thus, the use of groundwater for irrigation is minimized. The Authority has met its burden of proving that it will use the lowest quality of water available. With respect to the potable permit, the evidence establishes that there are only minor differences between the water quality in the Upper Floridan and Lower Floridan in this area. The Upper Floridan is a reasonable source for potable supply in this area. Thus, reasonable assurances have been provided by the Utility that it will utilize the lowest water quality that it has the ability to use for potable purposes. Waste of Water In regard to concerns that the design of the Villages Inc.'s stormwater/irrigation system will result in wasteful losses of water due to evaporation from the surface of the lined ponds, it must be noted that there are no artesian wells relating to this project and nothing in the record to suggest that the groundwater withdrawals by either the Utility or the Authority will cause excess water to run into the surface water system. Additionally, the evidence establishes that, to the extent groundwater will be withdrawn from the Lower Floridan and pumped into lined stormwater ponds, such augmentation is not for an aesthetic purpose. Instead, the groundwater added to those ponds will be utilized as an integral part of the irrigation system and will be limited in quantity to the amount necessary for immediate irrigation needs. Finally, the water to be withdrawn will be put to beneficial potable and irrigation uses, rather than wasteful purposes. Under current regulation, water lost from lined stormwater ponds through evaporation is not considered as waste. Thus, the Authority and the Utility have provided reasonable assurances that their withdrawals of groundwater will not result in waste. The ERP The stormwater management system proposed by the Villages Inc. will eventually serve 5,016 acres on which residential, commercial, golf course, and other recreational development will ultimately be constructed. However, the proposed permit currently at issue is preliminary in nature and will only authorize the construction of stormwater ponds, earthworks relating to the construction of compensating flood storage, and wetland mitigation. Water Quality Impacts The stormwater management system will include eight shallow treatment ponds that will be adjacent to Lake Miona and Black Lake and 45 lined retention ponds. Thirty-one of these lined ponds will serve as part of the irrigation system for a portion of the Villages Inc.'s development. All of these ponds provide water quality treatment. The unlined ponds will retain the first one inch of stormwater and then overflow into the lakes. The ponds provide water quality treatment of such water before it is discharged into the lakes. The water quality treatment provided by these ponds provides reasonable assurances that the project will not adversely impact the water quality of receiving waters. While they do not discharge directly to surface receiving waters, the lined retention ponds do provide protection against adverse water quality impacts on groundwater. There will be some percolation from these ponds, from the sides at heights above the top of the liner. However, the liners will prevent the discharge of pollutants through the highly permeable surface strata into the groundwater. The Villages Inc. designed the system in this manner in response to concerns voiced by the Department of Environmental Protection during the DRI process regarding potential pollutant loading of the aquifer at the retention pond sites. Furthermore, by distributing the accumulated stormwater - through the irrigation system - over a wider expanse of vegetated land surface, a greater degree of water quality treatment will be achieved than if the stormwater were simply permitted to percolate directly through the pond bottom. There is no reasonable expectation that pollutants will be discharged into the aquifer from the lined ponds. If dry ponds were used, there would be an accumulation of pollutants in the pond bottom. These measures provide reasonable assurances that there will be no adverse impact on the quality of receiving waters. Water Quantity Impacts With regard to the use of lined retention ponds, as part of the Villages Inc.’s stormwater system and the impact of such ponds on water quantity, the evaporative losses from lined ponds as opposed to unlined ponds is a differential of approximately one (1) inch of net recharge. The acreage of the lined ponds - even measured at the very top of the pond banks - is only 445 acres. That differential, in terms of a gross water balance, is not significant, in view of the other benefits provided by the lined ponds. As part of the project, wetlands will be created and expanded and other water bodies will be created. After rainfalls, these unlined ponds will be filled with water and will lose as much water through evaporation as would any other water body. The design proposed by the Villages Inc., however, will distribute the accumulated stormwater across the project site through the irrigation of vegetated areas. The documentation submitted by the Villages Inc. establishes that the ERP will not cause adverse water quantity impacts. The Villages Inc. has carried its burden as to this permitting criterion. Flooding, Surface Water Conveyance, and Storage Impacts Parts of the project are located in areas designated by the Federal Emergency Management Administration (FEMA) as 100-year flood zones. Specifically, these areas are located along Lake Miona, Black Lake, between Black Lake and Cherry Lake, and at some locations south of Black Lake. Under the District’s rules, compensation must be provided for any loss of flood zone in filled areas by the excavation of other areas. The District has determined, based upon the documentation provided with the Villages Inc.’s application, work on the site will encroach on 871.37 acre feet of the FEMA 100-year flood zone. However, 1,051.70 acre feet of compensating flood zone is being created. The Villages Inc. proposes to mitigate for the loss of flood zone primarily in the areas of Dry Prairie and Cherry Lake. At present, Cherry Lake is the location of a peat mining operation authorized by DEP permit. Mining has occurred at that site since the early 1980s. The flood zone mitigation proposed by the Villages Inc. provides reasonable assurance that it will sufficiently compensate for any loss of flood basin storage. The Villages Inc.'s project provides reasonable assurance that it will neither adversely affect surface water storage or conveyance capabilities, surface or groundwater levels or surface water flows nor cause adverse flooding. Each of the 45 retention ponds to be constructed on-site will include sufficient capacity, above the top of the pond liner, to hold a 100-year/24-hour storm event. This includes stormwater drainage from off-site. In addition, these ponds are designed to have an extra one foot of freeboard above that needed for the 100-year/24-hour storm, thus providing approximately an additional 100 acres of flood storage beyond that which will be lost through construction on-site. Furthermore, the Villages Inc. has proposed an emergency flood plan. In the event of a severe flood event, excess water will be pumped from Dry Prairie, Cherry Lake, and Lake Miona and delivered to the retention ponds and to certain golf course fairways located such that habitable living spaces would not be endangered. Environmental Impacts and Mitigation There are 601 acres of wetlands and surface waters of various kinds in the Villages Inc.’s project area. Forty-one acres of wetlands will be impacted by the work that is authorized under the ERP. Each of these impacted wetlands, along with the extent of the impact, is listed in the ERP. The impacts include both fill and excavation and all will be permanent. When assessing wetland impacts and proposed mitigation for those impacts, the District seeks to ensure that the activities proposed will not result in a net loss of wetland functionality. The object is to ensure that the end result will function at least as well as did the wetlands in their pre-impact condition. Functional value is judged, at least in part, by the long term viability of the wetland. While small, isolated wetlands are not completely without value, large wetland ecosystems – which are less susceptible to surrounding development – generally have greater long-term habitat value. The District’s policy is that an applicant need not provide any mitigation for the loss of habitat in wetlands of less than 0.5 acre, except under certain limited circumstances, including where the wetland is utilized by threatened or endangered species. Some wetlands that will be impacted by the Villages Inc.’s project are of high functional value and some are not as good. The Villages Inc. proposes a variety of types of mitigation for the wetlands impacts that will result from its project, all of which are summarized in the ERP. In all, 331.55 acres of mitigation are proposed by the Villages Inc. First, the District proposes to create new wetlands. Approximately 11 acres of this new wetland will consist of a marsh, which is to be created east of Cherry Lake. Second, it proposes to undertake substantial enhancement of Dry Prairie, a 126-acre wetland. Currently – and since at least the early nineties – Dry Prairie received discharge water from the peat mining operation at Cherry Lake. Without intervention, when the mining operations stop, Dry Prairie would naturally become drier than it has been for several years and would lose some of the habitat function that it has been providing. The Villages Inc.’s proposed enhancement is designed to match the current hydroperiods of Dry Prairie, thus ensuring its continued habitat value. Third, the Villages Inc. has proposed to enhance upland buffers around wetlands and surface waters by planting natural vegetation, thus providing a natural barrier. Placement of these buffers in conservation easements does not provide the Villages Inc. with mitigation credit, since a 25-foot buffer is required anyway. However, the District determined that the enhancement of these areas provided functional value to the wetlands and surface waters that would not be served by the easements alone. Fourth, the Villages Inc. will place a conservation easement over certain areas, including a 1500-foot radius preserve required by the Fish and Wildlife Conservation Commission (FWCC) around an identified eagles’ nest. These areas will also be used for the relocation of gopher tortoises and, if any are subsequently located, of gopher frogs. While the Villages Inc. is also performing some enhancement of this area, it will receive no mitigation credit for such enhancement – which was required to meet FWCC requirements. However, since the conservation easement will remain in effect in perpetuity, regardless of whether the eagles continue to use the nest, the easement ensures the continued, viability of the area’s wetlands and provides threatened and endangered species habitat. In order to provide additional assurances that these mitigation efforts will be successful, the District has included a condition in the proposed permit establishing wetland mitigation success criteria for the various types of proposed mitigation. If these success criteria are not achieved, additional mitigation must be provided. With the above described mitigation, the activities authorized under the ERP will not adversely impact the functional value of wetlands and other surface waters to fish or wildlife. The Villages Inc. has met its burden of providing reasonable assurances relating to this permit criterion. Capability of Performing Effectively The Villages Inc. has also provided reasonable assurances that the stormwater management system proposed is capable of functioning as designed. The retention ponds proposed are generally of a standard-type design and will not require complicated maintenance procedures. In its assessment of the functional capability of the system, the District did not concern itself with the amount of stormwater that the system might contribute for irrigation purposes. Rather, it focused its consideration on the stormwater management functions of the system. The question of the effectiveness of the system for irrigation purposes is not relevant to the determination of whether the Villages Inc. has met the criteria for permit issuance. Consequently, the record establishes that the documentation provided by the Villages Inc. contains reasonable assurances that the stormwater system will function effectively and as proposed. Operation Entity The Villages Inc. has created Community Development District No. 5 (CDD No. 5), which will serve as the entity responsible for the construction and maintenance of the stormwater system. CDD No. 5 will finance the construction through special revenue assessment bonds and will finance maintenance through the annual assessments. Similar community development districts were established to be responsible for earlier phases of the Villages Inc. The ERP includes a specific condition that, prior to any wetlands impacts, the Villages Inc. will either have to provide the District with documentation of the creation of a community development district or present the District with a performance bond in the amount of $1,698,696.00. Since the undisputed testimony at hearing was that CDD No. 5 has, in fact, now been created, there are reasonable assurances of financial responsibility. Secondary and Cumulative Impacts The Villages Inc.’s application also provides accurate and reliable information sufficient to establish that there are reasonable assurances that the proposed stormwater system will not cause unacceptable cumulative impacts upon wetlands or other surface waters or adverse secondary impacts to water resources. The system is designed in a manner that will meet water treatment criteria and there will be no secondary water quality impacts. Further, the use of buffers will prevent secondary impacts to wetlands and wetland habitats and there will be no secondary impacts to archeological or historical resources. In this instance, the stormwater system proposed by the Villages Inc. will function in a manner that replaces any water quantity or water quality functions lost by construction of the system. In its assessment of the possible cumulative impacts of the system, the District considered areas beyond the bounds of the current project, including the area to the south that is currently being reviewed under the DRI process as a substantial deviation. The District’s environmental scientist, Leonard Bartos, also reviewed that portion of the substantial deviation north of County Road 466A, in order to determine the types of wetlands present there. Furthermore, the District is one of the review agencies that comments on DRI and substantial deviation applications. When such an application is received by the District’s planning division, it is routed to the regulatory division for review. The District includes its knowledge of the DRIs in its determination that there are no cumulative impacts. Reasonable assurances have been provided as to these permitting criteria. Public Interest Balancing Test Because the proposed stormwater system will be located in, on, and over certain wetlands, the Villages Inc. must provide reasonable assurances that the system will not be contrary to the public interest. This assessment of this permitting criteria requires that the District balance seven factors. While the effects of the proposed activity will be permanent, the Villages Inc. has provided reasonable assurances that it will not have an adverse impact on the public health, safety, or welfare; on fishing or recreational values; on the flow of water; on environmental resources, including fish and wildlife and surface water resources; or on off-site properties. Furthermore, the District has carefully assessed the current functions being provided by the affected wetland areas. With respect to historical or archeological resources, the Villages Inc. has received letters from the Florida Department of State, Division of Historical Resources, stating that there are no significant historical or archeological resources on the project site that is the subject of this permit proceeding. Thus, the evidence establishes reasonable assurances that the Villages Inc.'s stormwater system will not be contrary to the public interest. Additionally, the District and Applicant presented uncontroverted evidence that the proposed project will not adversely impact a work of the District, and that there are no applicable special basin or geographic area criteria.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that a final order be entered issuing Water Use Permit Nos. 20012236.000 and 20012239.000 and Environmental Resource Permit No. 43020198.001, in accordance with the District’s proposed agency action. DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2002.
The Issue The issues presented in this matter concern the request by the Petitioner to be granted a management and storage of surface waters permit by Respondent. Respondent proposes to deny the permit based upon the perception that the activities contemplated by Petitioner: (1) are not consistent with the public interest as envisioned by Section 373.016, Florida Statutes, and 40C- 4.301(1)(b), Florida Administrative Code, (2) are not a reasonable and beneficial activity, per Section 40C-4.301(1)(a), Florida Administrative Code, alter the peak discharge rate of runoff from the proposed activity or the downstream peak stage or duration for the 1 in 10 year design storm, per Section 40C-4.301(3)(a), Florida Administrative Code, (4) cause an increase in velocity or flood stage on lands other than those owned, leased, or otherwise controlled by the applicant for the design storm, per Section 40C-4.301(3)(b), Florida Administrative Code, (5) cause an increase in flow or stage such that it would adversely affect lands other than those owned, leased, or otherwise controlled by the applicant, per Section 40C-4.301(3)(c), Florida Administrative Code. 1/
Findings Of Fact A predecessor applicant had requested permission to construct and operate the water management system which is the subject of this controversy. The approximate acreage involved was 197 acres in Lake County, Florida. This acreage and requested activity was subject to the regulatory requirements of St. Johns River Water Management District. Clay Island Farms, Inc., hereinafter referred to as CIF, was substituted for the initial applicant and this matter has been litigated before the Division of Administrative Hearings on the continuing application of the Petitioner. The permit application number is 4- 8089. This application was considered with application number 4-8088, pertaining to property owned by A. Duda and Sons, Inc. Subsequently, the latter application shall be referred to as the Duda request for permit. Certain additional information was sought by Respondent from the applicants, CIF and Duda, in the permit review, by correspondence dated October 2, 1981. A copy of that correspondence may be found as Petitioner's Exhibit No. 16 admitted into evidence. In particular, CIF was requested to prepare pre and post-development runoff rates in the 1 in 10, 1 in 25,and 1 in 100-year storms, to include stage-storage and stage-discharge rates for any and all retention facilities within the project design. Petitioner's Composite Exhibit No. 1 admitted into evidence contains a copy of the engineering report by CIF which are CIF's responses to the request for information. The date of the engineering report is July 12, 1982. The CIF application, as originally envisioned, called for the construction of exterior and interior ditches to be placed around a dike of 71 feet MSL elevation. The dike would enclose a proposed farm operation of approximately 197 acres, should the permit be granted. Within that 197 acre plot, would be found numerous drainage ditches to include major ditches and minor arterial ditches. The purpose of those ditches found in the 197 acres would be to serve as a conveyance for rainfall runoff. The system of conveyance would be connected to an existing conveyance system already in place and related to farm operations of A. Duda and Sons. The runoff would be eventually placed in a retention pond and at times discharged from that retention pond or basin into Lake Apopka by means of gravity flow. The particulars of the development of the 197 acre plot and its service dike, canals, and ditches are more completely described in Petitioner's Exhibit No. 1, which is the engineering report for the surface water management permit application. The CIF application was reviewed by the staff of the Respondent. Recommendation was made to deny the permit. Details of that denial may be found in Respondent's Exhibit No. 1. In the face of the denial, CIF requested an administrative hearing. This request was made on August 27, 1982, by petition for formal Subsection 120.57(1), Florida Statutes, hearing to determine Petitioner's entitlement to the requested permit. St. Johns River Water Management District, in the person of its governing board, determined to refer this matter to the Division of Administrative Hearings to conduct the formal proceeding and the request for the assignment of a hearing officer was received by the Division on September 13, 1982, leading to the final hearing in this cause. During the course of the final hearing, the CIF permit application was modified in a fashion which reduced the amount of acreage sought for cultivation. Now, approximately 122 acres would be farmed per the amended proposal. A general depiction of the design of the project in its amended form may be found in the engineer's sheet, which is Petitioner's Exhibit No. 20 admitted into evidence. When contrasted with the engineering drawings set out in Petitioner's Composite Exhibit No. 1, the new design is essentially the same as contemplated in the original permit application, on a lesser scale. Other than dimensions, the basic concepts of the CIF operation would remain the same under the amended proposal. At present, Petitioner proposes to remove the vegetation which covers the subject 122 acre plot and to conduct a muck farming operation. That vegetation is mostly mixed hardwood with the primary species being red maple. The soil in this area is constituted of monteverde muck, which is conducive to the production of corn and carrots, the crops which Petitioner would plant, to prepare the land for the operation, the system of ditches dikes and canals described would be installed following the cleaning, draining, and leveling of the 122 acres. Petitioner's Exhibit No. 10 admitted into evidence depicts land which has been cultivated and the subject 122 acres in its undisturbed state. Petitioner's Exhibit No. 4 admitted into evidence shows the overall CIF area is outlined in red, except for its southerly extent, which carries a red and yellow line on the exhibit. This exhibit depicts Wolfshead Lake which is a small interior lake in the southeastern corner of the overall CIF property. The yellow line in the middle of the CIF property represents, the location of a former north-south canal. The westernmost north-south reach, which is shown with a red line, depicts a canal which runs north from Wolfshead Lake into the existing Duda system of canals and ditches. The Duda operation has attempted to plug that north-south canal on the western fringe to stop the flow from the area of Wolfshead Lake, but has been unsuccessful and the water still enters the Duda farm ditches and canals. In the 1940's and early 1950's, the CIF property had been partially developed for a cattle operation and truck farming. Those canals, as described before, were installed, together with the diagonal yellow line on Petitioner's Exhibit 4, which represents a canal that was built with an axis running northeast and southwest. In addition, there was a centrally placed east-west canal and a slough running from Wolfshead Lake in a southeasterly direction. The slough is still there, although water that might be diverted from the Wolfshead Lake area into the slough is flowing north in the westerly north-south canal at present. If the project were allowed, most of the water flowing in and around the Wolfshead Lake would be introduced into the slough and from there exit to Lake Apopka. The center north-south canal and the interior east-west canal, together with the diagonal canal, are not in operation at present. The center north-south-canal would become the approximate eastern boundary of the 122 acres with the western north-south canal representing the approximate western boundary of the 122 acre plot. The northern boundary of the CIF property is constituted of an east-west canal which is part of the present Duda system. This is the only one of the canals associated with the former farming operation on the CIF property which is part of any maintained system of conveyances presently in existence. Approximately 1,000 acres are being farmed by Duda and Sons in property north of the proposed project. The Duda permit application, 4-8088 as granted, is described in Petitioner's Exhibit No. 13 which is a copy of the permit. This acreage is generally found to the northwest of the CIF plot, and would allow an additional 300 acres to be farmed in that muck area, on land which has been cleared for the most part and/or which has an elevation predominantly above 68.5 feet MSL. Eighty acres of the proposed Duda permit application was denied based upon the fact that it had not been cleared prior to the Duda permit application and in consideration of the amount of the 80 acre segment which lies below 68.5 feet MSL. The elevation 68.5 feet MSL represents the flood plain for the 1 in 10 year rainfall event for Lake Apopka. The area of the Duda permit is depicted on Petitioner's Exhibit No. 4 and outlined on that exhibit with lines of green and yellow at the southern end, green and yellow and red and yellow on its western flanks, red at the north end and by red on the east side, together with a Duda drainage ditch, which runs north from the terminus of the north-south drainage ditch coming from Wolfshead Lake and the east-west drainage ditch at the northern extent of the CIF property. Exhibit No. 4 was made prior to clearing operations depicted in Petitioner's Exhibit No. 10 and that letter exhibit is a more correct indication of the appearance of the new Duda permit property today. A green diagonal line running northwest and southeast intersecting with a line running east-west and a line running north-south depicts the approximate part of the 80 acres, which lies below 68.5 feet MSL, as shown in Petitioner's Exhibit No. 4. Farm operations, in keeping with the authority of Permit No. 4-8088, have not commenced. If the CIF permit application is successful, the original 1,000 acres, approximately 300 acre area of the Duda permit and the 122 acres of CIF, would be tied in by a system of conveyance ditches or canals allowing the interchange and transport of water through and around the three farm areas. The existing retention pond would be expanded to accommodate the additional farm acreage. The Petitioner is willing to increase the present retention pond to a design capacity which would equal one acre of basin for each ten acres of farm land, at the place in time when all three elements of the muck farm operation were under way. This again pertains to the existing 1,000 acres, the approximately 300 acre recent Duda permit, and the 122 acres related to the CIF application. With the addition of the CIF acreage, when water in the ditches reached 67.1 feet MSL, this would cause the engagement of a 40,000 GPM pump allowing the ditch water influent into the retention pond. The pump automatically would shut off at any time the water level in the access ditches to the pond dropped below 61 feet MSL. The primary purpose of the retention pond is to make water available for irrigation of crops, in its present state, and as contemplated with the addition of the CIF project. The pond does and would detain farm water for a period of about a day allowing the settling out of certain nutrients which are in particulate form. The existing pond and in its expanded form does not and would not filter nutrients which have been dissolved and have become a part of the water column. At times of high incidence of rainfall, when the crops are inundated with water for a 48-hour period of time, the retention pond is now designed and as contemplated by the addition of the CIF farm land, would allow for the discharge of effluent into Lake Apopka through two discharge culverts. The discharge is by means of gravity through an adjustable riser system. The retention pond as presently designed and as contemplated in its expansion has established the height at which water would be released from the retention pond into Lake Apopka through the riser at 68 feet MSL. The occasion of high incidence of rainfall occurs during the normal rainy season in a given year. Discharge could also be expected in the 1 in 10 year, 24hour storm event. During that storm event or design, Lake Apopka would rise to a level of 68.54 feet MSL, a level which would correspond to the 10year flood plain. Whether in the pre or post-development phase of the 122 acres, waters from that acreage would be discharged during the course of the storm through culverts leading from the retention pond into Lake Apopka. This process would continue until the gravity flow stopped at the moment where the water level in the pond and the water level in Lake Apopka adjacent to the discharge culverts achieved equilibrium of elevation. At that point in time, the gravity flow or discharge from the retention basin would cease, there no longer being a positive gradient from the detention pond to Lake Apopka. There will be some amount of discharge in the 24-hour storm event through the culverts at the retention pond either in the pre or post-development phases of the project, because, at present, the western most north-south ditch, which is found at the western boundary of the CIF property, allows water to flow north into the present Duda ditch system, water which has fallen on the 122 acres in question. From the ditch system, that water finds its way into the retention pond and thus into the lake. The contemplated system to be installed with the 122 acres at build-out would also allow water from the 122 acres to go through a system of conveyances and to the retention pond and from there into Lake Apopka. Although considerable testimony was presented by both parties on the subject of comparing pre-development and post-development peak discharge rates of runoff from the proposed activity, in the 1 in 10 year, 24-hour storm design or event, neither party has satisfactorily proven the dimensions of the pre-development and post-development peak discharge rates of runoff from the proposed activity. This determination is made having reviewed the testimony and the exhibits in support of that testimony. Notwithstanding a lack of proof of this differential with exactitude, it has been shown by the testimony and exhibits that the post- development peak discharge rate of runoff in the 1 in 10 year, 24-hour design storm or event can be expected to exceed that of the pre-development rate. On the associated topic of the ability of the post-development design to accommodate the differential in peak discharge rate of runoff between pre- development and post-development, Petitioner has failed to establish this proof. The modeling that was done by the Petitioner, in an effort to depict the differential as 10 acre feet with an available capacity of attenuation approximating 26 acre feet within the system of ditches, is not convincing. Nor has petitioner shown that there is sufficient storage in the retention pond, in the course of the storm event. The data offered in support of Petitioner's position does not sufficiently address accommodation of the drainage from areas surrounding the 122 acres in question, which are not part of the Duda system; the amounts of water already found in the system of ditches and canals at the onset of the storm event; the amount of water located on the crops at the onset of the storm event, which would have to be removed; and the amount of water already found in the retention pond at the time of the storm event. During the 1 in 10 year 24-hour storm, the CIF 122 acres will be protected by the 71-foot MSL dike, in that the expected elevation of Lake Apopka would not exceed 68.54 feet MSL. The dike would also protect the 122 acres in the 25, 50, and 100-year, 24-hour storm events whose elevations are anticipated to be 68.98, 69.28, and 69.56 feet MSL, respectively. As a consequence, an increase in flood stage would occur on lands other than those controlled by CIF. The amount of increase in flood stage would be approximately .046 inches during the 1 in 10 year storm, and an increasingly greater amount for the larger storms. It was not established where the amount of water which could not be staged on the 122 acres would be brought to bear through the surface flow on the 31,000 acres of water which constitute Lake Apopka. Nonetheless, that water could be expected to increase the flood stage on lands other than those of the Applicant. Possibly the dikes protecting the muck farms on the northern side of Lake Apopka could be influenced by the .046 inches in elevation due to the forces associated with the 1 in 10 year storm event, such as winds and movement of the water in the lake. This is true, notwithstanding the fact that the design goal of the dikes in the area is 71 feet MSL. The dikes are constituted of muck and are susceptible to overtopping, erosion, or blowout. By history, there have bean dike failures in the northern end of Lake Apopka, and associated increases in stage or flood stage. This incremental increase in water level in the 1 in 10 year storm event, due to the CIF development, when considered in the context with the other influences of that storm event, could possibly be the determining incident leading to dike failure in the northern perimeter of Lake Apopka. However, given the history of dike failures, prior to this potential loss of the storage area on the applicant's property, it has not been shown that the proximate cause of dike failure in the 1 in 10 year storm could be expected to be the contribution of an additional .046 inches of water on the lake surface. Those failures existed prior to the potential for the addition of water and were the result of inadequate maintenance of a structure which demanded a better quality of attention. Nonetheless, the additional amount of water could be expected to exacerbate the extent of a dike breach in any 1 in 10 year storm event that occurred subsequent to the development of the CIF 122 acres. In summary, the likelihood that the increase in elevation of water caused by the loss of storage on the subject property will be the critical event that causes a dike failure is not accepted. A dike could breach because of the influence of the storm even itself, without regard for the incremental increases in water elevation due to loss of water storage on the CIF property. The poor condition of some dikes due to less than adequate design or maintenance, would promote that dike failure and be exacerbated to the extent of more water being introduced on that property through the incremental amount of increase due to loss of storage on the CIF property. The dike failure circumstance in and of itself would not be sufficient to deny the permit application; however, the applicant had the burden of addressing the possible problem of increases in stage or flood stage on other properties, not its own, which are not protected by dikes. This showing was not made by the applicant, notwithstanding the fact that an increase in stage or flood stage could be expected to occur on property fronting Lake Apopka, which property is not protected by any form of artificial barrier. The installation of the protective dike aground the 122 areas of the CIF property in the 1 in 10 year design storm and potentially at times of lesser rainfall events, could be expected to increase the stage or flood stage on lands unprotected by dikes and thereby adversely affect lands other than those controlled by the applicant. Most of the 122 acres and the property to the east of that development and a portion of the undeveloped 80 acres in the recent Duda permit would be inundated in the 1 in 10 year storm event, prior to development. This is true because the elevation of much of that property is approximately 67.5 foot MSL. During the 1 in 10 year storm event, it would store approximately one foot of water, as presently constituted. It could also be expected to be inundated on an average of approximately once in two years. Lake Apopka is a part of a controlled system of lakes known as the Oklawaha River chain of lakes. Respondent regulates the water level in that chain of lakes by operation of a lock on the Apopka-Beauclair canal. The maximum desirable elevation of 67.5 feet MSL for Lake Apopka is a part of the regulation schedule found in Respondent's Exhibit No. 2 admitted into evidence. In the 1 in 10 year or better storm event, the Apopka-Beauclair system could not draw down the surface water at a rate faster than 27 days per foot, even assuming the lock was fully open to flow. Consequently, those properties that were suffering an, increase in flood stage on their surface could not expect to gain prompt relief through the regulation of waters in the Oklawaha River chain of lakes. Lake Apopka is an hyper-eutrophic lake. Although it is classified as Class III water body (ambient water quality) within the meaning of Section 17- 3.161, Florida Administrative Code, it fails to match that classification in terms of its actual water quality. This is as a consequence of its highly eutrophic state, brought about by the age of the lake and the contributions of man. Some of the contributors to the eutrophication have been removed from the lake area and water quality has improved. Those facilities removed were sewage treatment and citrus processing plants around the Lake Apopka rim. The muck farms remain and the quality of the water in the retention basins or ponds when compared to the receiving waters of Lake Apopka is similar in nature. Consequently, the receiving waters are not enhanced in their water quality when the retention ponds discharge water into Lake Apopka. As stated before, the retention ponds do not have as their primary purpose the treatment of water. Any water quality improvement is a secondary function of the retention pond. The retention ponds do improve the water somewhat, as described, and are adequately sized to fulfill that partial cleansing. Whether the water quality in Lake Apopka would ever improve sufficiently to allow Lake Apopka to become a more diversified habitat for fish and wildlife is not certain, even if all contributing discharges of pollutants were curtailed, to include the discharge of water from the muck farms with its high nutrient loads. Nonetheless, Lake Apopka cannot accomplish the recovery if the effluent from the muck farms continues to be introduced into the lake with the present constituents found in the water. Out of concern for the water quality in Lake Apopka, officials of the University of Florida have conducted experiments on nutrient removal which they hoped would approximate the quality of removal accomplished by transitional vegetation and swamp. (The 122 acres at issue and the western and eastern adjoining property are constituted of these water treatment zones.) This experiment of nutrient removal through use of retention ponds calls for the retention of the muck farm water for a period of six days allowing settlement of particulates and for the vegetation within those experimental retention basins to uptake dissolved nutrients. Several types of vegetation are used to gain a better quality of nutrient uptake add the vegetation is harvested every six to eight weeks to improve that performance. The experiment has shown that the quality of water discharged from the ponds utilized by the University of Florida was comparable in its quality to the natural wetlands system water discharge. The natural wetlands discharge is of a better quality than the receiving waters. Unlike the university experiment, the pond contemplated by CIF primarily emphasizes detention for a shorter period of time than was used in the experiment and allows highly eutrophic water to be mixed with that quality of water already found in Lake Apopka. The only exception to that comment is that water flowing from Wolfshead Lake, which is south of the proposed 122 acres, is a high quality of water, and through the project as contemplated, this water would be directly introduced into Lake Apopka through a flow over a natural wetlands system. This is in opposition to the present situation where the water from Wolfshead Lake flows primarily to the north through an existing canal and is mixed with water from the muck farm and is, therefore, of the eutrophic character as opposed to the high quality character. The Duda permit, which was issued, would allow the introduction of water which is similar in character to the water of Lake Apopka, through the system of ditch conveyances, placement in the retention pond, and at times, flow to the lake. In its effect, the nutrient loading which occurs by introduction of waters from that new farm, would be similar to that proposed in the CIF project. The fact of this similarity does not prohibit the district from evaluating water quality matters on the occasion of the CIF permit decision. Should the 122 acres be converted from natural vegetation to a muck farm, wildlife and fish habitat would be adversely impacted. The habitat provided by the plot is in scarce supply and is essential to the maintenance of a diversified fish population. The hardwood swamp, which is part of and adjacent to the 122 acres of the CIF application, supports benthic invertebrates, which are a food source for game fish. The type of vegetation found in the lake, due to its eutrophic state, is plankton and one of the by- products of the reproduction of that plant through the process and respiration is the destruction of the fish population. This occurs in the summer months. The plankton has replaced the emergent and submergent vegetation which once covered as much as two-thirds of Lake Apopka and now represents .05 percent of the lake. As a consequence, game fish have diminished over a period of years with plankton feeding fish predominating. Consequently, the fish population is less diverse and the removal of the vegetation becomes a significant contributor to the imbalance in fish population.
Findings Of Fact THE PARTIES CMI is a Florida corporation authorized to do business in Florida. CMI owns a mine site as is depicted in the permit application, which mine site is known as "Pine Level". Alan R. Behrens owns residential property approximately two miles from Pine Level, which abuts Horse Creek. He maintains an individual well for domestic and other purposes, and is a substantially affected person under the statute. Charlotte County is a government entity and a political subdivision of the State of Florida, and is a substantially affected person under the statute. The City of North Port is an incorporated municipality of the State of Florida, and is a substantially affected person under the statute. The Environmental Confederation (ECOSWF), a citizens group, is a substantially affected person under the statute. The District is the agency with the responsibility for reviewing and ruling upon CMI's water use permit application. APPLICATION AND PROCESS CMI proposes to operate a phosphate mine facility at "Pine Level" ("site"). The site is located approximately seven miles west of Arcadia, DeSoto County, Florida. The mine reserves at the site are approximately 17,700 acres. 9,000 to 10,000 acres are projected for mining. In 1978, Consumptive Use Permit No. 200103, was issued and in 1986, the current owners purchased the corporation which held the permit, and changed the name of the corporation to CMI. The Industrial Water Use Permit has not been used since it was issued to a prior owner of the site, and provided for average daily withdrawals of 13.6 mgd from wells. In 1984, this permit was renewed and modified to provide for average daily withdrawals of 12.8 mgd from deep wells. The groundwater withdrawals currently sought by CMI is 6.9 million gallons per day ("mgd") average daily withdrawal, which totals include 5.1 mgd from deep wells for use in the amine flotation process and 1.7 mgd for sealing the matrix slurry pumps. This reduction to 6.9 mgd in permitted withdrawals is a significant reduction. In addition, the proposed permit allows 3.7 mgd to be withdrawn from the surficial aquifer by dewatering mine cuts. In November, 1990, CMI submitted an application for renewal. In November 1991, CMI submitted to the District a revised Water Use Application No. 200103.02 ("application") to renew and modify the existing water use permit. The District requested more information, and CMI provided additional information and supplemental responses to aid in the review and evaluation of the application. The District prepared and submitted a Notice of Intent to Issue Permit and the District staff has prepared a "draft" Permit No. 200103.02 authorizing the withdrawal of the quantities requested in the application with certain conditions. In addition to renewal and modification of the water use permit, which is the subject of this proceeding, CMI will be required to participate in numerous regulatory reviews and permitting procedures (i.e. a development of regional impact evaluation, a federal environmental impact statement, federal approvals under the Clean Water Act [including a national pollutant discharge elimination system ("NPDES") permit], and a conceptual reclamation plan review) before CMI may commence mining, and consequently, begin any withdrawal of water. The mining process will utilize large walking draglines to excavate over burden and stack it beside the active mining area for land reclamation. The ore material called "matrix" will be dug up by the draglines, placed into an earthen pit where it will be slurried with a high pressure water jet. A pump will pick up this slurried matrix material, pump it back to the processing plant where it will first go through various separation devices, including screens and cyclones. The course material termed "pebble" will be separated and parts of that will be directly saleable as a product. The bulk of the phosphate product is contained in intermediate-sized material called concentrate feed. The concentrate feed consists of ore and sand. The ore is separated from the sand in a process called "flotation". The flotation process is a two stage process that ends up separating the tailings sand, which can then go back to the sand-clay flocculation and mixing units, and be pumped out ultimately for land reclamation back in the mine-out areas. The phosphate product which is called "wet rock", is placed in storage bins where it can drain, and be loaded onto rail cars for shipment. The "amine flotation process" is the second stage of flotation where sand and phosphates are separated. This process requires clean water for the amine flotation phase, because any amount of contaminants, including organic reagents, will adversely affect the process. Any mineral particles must be removed so that the amine may attach itself to the phosphate. Any contaminants will destroy or significantly and adversely affect not only the phosphate recovery, but the entire flotation process. Deep well water is requested for use in the amine flotation process because it is clean. All phosphate mines in Florida currently rely on deep well water. 5.2 mgd is the minimum amount of "clean" water needed to assure efficient processing of the amine flotation process of the mine beneficiation plant. Deep well withdrawals are also commonly used for the purpose of sealing or protecting the packing of pumps at various points in the mine system in order to avoid damage to the equipment. These wells are often referred to as "sealing water wells". The Pine Level mine will require 1.7 mgd for this purpose. Water for the sealing water wells must be clean and clear in order to effectively seal pumps for leaks. The Pine Level project will provide 400-500 construction jobs during the construction period. It will provide approximately 200 full-time jobs with an annual payroll of about five million dollars once it is in operation. It will result in about one thousand additional jobs providing services to the development. It will pay in excess of one million dollars a year to DeSoto County in ad valorem taxes. TECHNICAL CRITERIA The water use is a reasonable and beneficial use. 5.2 mgd groundwater withdrawal is "necessary to fill a certain reasonable demand." The technical criteria relating to water level or rates of flow impacts set forth in Rule 40D-2.301(1)(d), Florida Administrative Code, are not applicable in this proceeding because the District has not established any regulatory levels or rates of flow for the area encompassed by the application. In addition, this presumption only addresses surface water withdrawals. Phosphate mining is a beneficial activity and is consistent with the public interest. There is no significant risk of salt water intrusion. The water use withdrawal will not degrade the water quality in the aquifer by causing any contamination plume to spread. There have been no contaminant plumes identified on site. GROUNDWATER IMPACTS There is sufficient ground water at the site of a suitable quality and quantity to support the proposed phosphate mining and beneficiation activities. The local hydrogeology at the site consists of an upper layer known as the surficial aquifer. Rain penetrates the surficial aquifer to flow vertically to the water table. The water that is not consumed by vegetation at this layer will flow either to a nearby stream channel or will leak down through a semi- confining layer. The water continues to seep vertically into the lower underlying limestone aquifers. There are three limestone water-bearing layers: the intermediate, the Suwannee or Upper Floridan, and the Avon Park or Lower Floridan aquifers, respectively. The intermediate and the underlying Suwannee aquifer are separated by another semi-confining layer. Likewise, the Avon Park aquifer and the Suwannee aquifer are separated by another semi-confining layer. At the site, wells in the intermediate aquifer will draw water to seal the bearings on the matrix slurry pumps. There will be one deep well in the Suwannee and one deep well in the Avon Park to draw for the beneficiation plant. The groundwater modeling performed by CMI simulated the four aquifers, that is, the surficial aquifer and each of the three limestone aquifers. An Aquifer Performance Test ("APT") was performed at the site. The data generated from the APT was used to calculate various aquifer parameters, for example, transmissivity, storage coefficient, and leakiness. This information was then used in setting up the groundwater flow model that ultimately was incorporated into the application. During the District staff's review of the application, the deep well withdrawal quantities requested by CMI were compared with approximately 6 other phosphate mines of comparable size, acreage, and type of operation. As a result of this comparison, the staff found CMI's requested use to be less than the other six phosphate mines. The use of recycled water in the amine flotation process in place of deep well water in the past by CMI has proven unsuccessful because a constant temperature and a constant ph level could not be maintained with recycled water, and recycled water contains traces of fatty acids and oils, which also negatively affect the amine flotation process. C.F. Industries, Inc., has been operating a phosphate mine in Hardee County, Florida, since 1978. C.F. Industries, Inc., has since 1983 at the Hardee County mine, successfully substituted recirculation water for deep well water for operation of the amine flotation circuit on a routine basis. C.F. Industries, Inc., presently plans to employ substitution of some recirculation water for deep well water in a new yet-to-be permitted mine. C.F. Industries, Inc., at its existing Hardee County mine requires use of deep well water for start-up purposes to "charge" the system. C.F. Industries, Inc., at its existing mine, uses deep well water to respond to abnormal operational conditions, including excessive rainfall events, when the quality of the normal recirculation water is not suitable for substitution of deep well water. Neither CMI, nor District staff was aware prior to hearing, that the C.F. mine was successfully substituting recycled water for deep well water in the amine flotation process. At the time of making the representations to the District about necessary water quality requirements of the flotation process, CMI had a study, entitled, Amine Water Evaluation, Pine Level Project, July 27, 1984, ("Pilot Plant Study"), which concluded that deep well pumping and discharge could be reduced by use of water drawn from mine cuts. The Pilot Plant study was site specific to CMI's proposed phosphate mine. The Pilot Plant study bench tests were verified in the same pilot plant facility CMI uses to verify the grade of ore on the Pine Level Site. The Pilot Plant study or its results were known to CMI officials or experts involved in the permit application at issue in this case. CMI did not inform District staff of the existence or conclusions of the Pilot Plant study. The Pilot Plant study indicates that CMI could reduce its water usage by substituting water from mine cuts for deep well water. CMI did no studies to determine if the substitution of mine cut water for deep well water, as suggested by the Pilot Plant Study, was feasible to implement. SURFACE WATER IMPACTS The phosphate ore (matrix), is extracted by an excavation machine called a "dragline", which opens mining cuts of approximately 32 to 35 feet in depth, 330 feet wide, and up to 4,000 feet long. Seepage occurs into the mine cuts from the water table, and must be pumped out in order to see and extract the matrix. This dewatering is also necessary to protect the draglines against slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculation system which is operated for purposes of collecting and recycling water within the mine complex. The matrix that is extracted from the mining cut is placed in a shallow excavation near the cut, and is converted to a slurry and, thereafter, transported hydraulically to the mine processing (or "beneficiation") plant. The beneficiation plant uses considerable quantities of water, utilizing supplies from within the mine system (i.e. surface water) and water from deep wells. Sand tailings and sand and clay mixture are by-products of the mining process. Recycled water is used to transport waste clay and sand from the plant to the disposal and reclamation areas. Reclamation takes 1-2 years for areas reclaimed with sand tailings and 5-6 years for areas reclaimed with a sand-clay mixture. Groundwater that is used in the processing plant is recycled. Water within the mine is recycled a number of times, and CMI's proposal calls for 90 percent of the total mine demand to be satisfied by this recirculation system and approximately 96 percent of the water used is recyclable water. DEWATERING AND WATER BALANCE CMI's mine pit dewatering activities result in the withdrawal of water from the surficial aquifer. A "water balance" demonstrates that requested quantities relate to reasonable mining, processing, and dewatering needs. The "water balance" for the mining operation evidences a balance between sources and uses/losses. The sources of water in the CMI water balance that input to the mining operation include groundwater from wells (6.9 mgd), mine cut dewatering or water table drainage (3.7 mgd), and collected rainfall (3.1 mgd). Uses and losses associated with the mining operation include water retained in clays (6.7 mgd), water shipped with final product (.7 mgd), evapotranspiration and evaporation (3.0 mgd), water used for agricultural irrigation (5.0 mgd), and water seeping from the Mine Water Surge Area ("MWSA") (1.2 mgd). The water balance matrix moisture component of 2.9 mgd is not a withdrawal of water for water use permitting purposes. The District's modeling of the impacts resulting from mine cut dewatering resulted in a finding of 2.34 MGD as opposed to the 3.7 mgd derived by CMI. For calculation purposes, rainfall is collected at the rate of 3,974 gallons per acre per day. CMI calculates that it will collect 3.1 mgd of rainfall, and use it in its recirculation system. The 3.1 mgd calculation is based on the amount of rain that will fall on 600 acres of mine water surge area, 80 acres of plant site, and two 50 acre mine cuts. CMI plans to mine 450 acres each year at the Pine Level Site over a period of 22 years. Runoff over disturbed areas on the CMI mine site must be captured, and will become part of the recirculation system. Assuming only one year of disturbed area during the permit term, CMI has failed to account for nearly 1.8 mgd in its water balance (450 acres x 3,974 gallons/acre/day). CMI plans to pump any rainfall collected from all disturbed areas to the mine water surge area (MWSA). CMI has not included any acres of disturbed area in its calculations of the amount of rainfall it will collect for the current permit. CMI has not submitted a mine plan. Without a mine plan, the number of disturbed acres cannot be determined. Because CMI's water balance does not include rainfall collected over disturbed areas, the water balance is incorrect. The rainfall collected from the disturbed areas will increase the amount of water that CMI will need to discharge or use for agricultural purposes. Excavation of the Mine Water Surge Area will cause dewatering of the surficial aquifer. No analysis was done of how much dewatering of the surficial aquifer will occur as a result of the excavation of the MWSA, or of the potential impacts to wetlands as a result of the dewatering activities. The District's one foot draw down presumption applies to dewatering as well as to groundwater pumping. The proposed dewatering setback from wetlands was set at 660 feet. The 660 foot setback distance is in lieu of mitigation if CMI wishes to mine within the setback distance, it will be required to implement mitigation procedures. Dewatering draw downs in the surficial aquifer as great as six and one-half to seven feet could occur on the CMI site at 660 feet from a mine cut under dry weather conditions. At 660 feet, the predicted draw down is nearly one and one-half feet using a mine pit depth of 26 feet, based on a three foot water table and a 29 foot average mine cut depth for the area expected to be mined during the term of the permit. Actual mine cut depths during the term of the permit would be as deep as thirty-seven feet which result in a draw down in the aquifer that is greater than one and on-half feet. Combining the dewatering calculations with the surficial aquifer draw downs resulting from CMI's planned well pumping from the intermediate and Floridian aquifers result in greater than predicted draw downs. CMI's water balance did not account for changes in water needs due to variability of the ore body. WATER QUALITY CMI has not demonstrated that the water quantities requested for the operation of the phosphate mine and beneficiation plant, and land reclamation and water handling will utilize the lowest water quality to the greatest extent practicable. Nevertheless, the Pine Level mine is innovative in comparison to other operating mines. It proposes to reduce its groundwater requirement by increasing the amount of recycled water used in the amine flotation process; employ an innovative sand/clay mixing technique for land reclamation, thus eliminating the need for conventional large, above-ground day settling areas or slime ponds; and use surplus water for irrigation of agricultural crops or pasture. CMI plans to mine the Pine Level Site for a period of 22 years. For phosphate mines, neither DNR, nor SWFWMD analyze impacts with respect to surface water during the mining process. For phosphate mines, no state agency looks at off-site surface water impacts from the standpoint of draw downs, with the possible exception of cities and counties. The District has not required CMI to submit an application for the management and storage of surface waters permit, since the District staff believes that phosphate mines are exempt from obtaining any MSSW permit from the District. A gap exists in the regulatory scheme for phosphate mines with respect to the reduction of surface water flows during the mining process if SWFWMD exempts phosphate mines from obtaining an MSSW permit. INTERFERENCE WITH EXISTING LEGAL USERS The City of North Port is an existing legal user of water. The City of North Port has a public water supply facility which draws its water from the Big Slough. The Big Slough normally gets a portion of its flow from high quality water in the surficial aquifer. CMI's proposed Pine Level phosphate mine is located in the watersheds which feed the Big Slough and the Peace River. In the initial years of the mine, virtually all of the collected rainfall will be diverted from the Big Slough watershed. No analysis has been done to see how dewatering might affect the City of North Port. Any significant reduction in flow to the City of North Port's facility during the low flow season will interfere with North Ports existing legal use of water. Diversion of 3.1 mgd of rainfall from the Big Slough will have an adverse impact on the City of North Port's water facility. The City of North Port is currently under a consent agreement with the Florida Department of Environmental Regulation because the water supplied by its facility violates drinking water quality standards for sulfates and total dissolved solids ("TDS") regularly during periods of low flow in the Big Slough. The MWSA, the plant area and the initial mining areas are primarily within the Big Slough drainage area. Seepage of 1.2 mgd from the MWSA will flow into the Big Slough. The only analysis done of the quality of the seepage from the MWSA was a rough analysis which showed that sulfates will likely be around 550 grams per liter. The legal standard for sulfates in drinking water is 250 grams per liter. Seepage from the MWSA will be high in total dissolved solids ("TDS") since a good portion of it was pumped from deep wells which have very high levels of TDS. No analysis was done of the potential of this seepage water to interfere with North Port's facility. Charlotte County is an existing legal user of water whose water supply is drawn from the Peace River downstream from the proposed CMI phosphate mine at Pine Level. Discharge of 5.0 mgd from the Pine Level mine could adversely affect Charlotte County's drinking water facility located on the Peace River. AGRICULTURAL USE CMI proposes to use 5.0 MGD of surplus water for irrigation of pasture grasses for cattle. CMI has not conducted any specific tests to determine the feasibility of using the discharge or the quality of the water that they plan to use for agricultural irrigation. The water for irrigation will be drawn out of the mine water surge area. The determination of whether the 5.0 mgd discharge can be used for agricultural irrigation has been postponed. The staff's position is that the proposed special conditions provide reasonable assurances that the discharge will comply with the requirements of the Basis for Review. WETLANDS Isolated wetlands occur throughout the CMI mine site. The isolated wetlands on the CMI property provide habitat for endangered and threatened species. Sandhill Cranes and Wood Storks, both threatened or endangered species, were sighted on the CMI property by wetlands experts during their site visit prior to the hearing. Small isolated wetlands on CMI property would be adversely affected by less than a one foot draw down. Wetland peat soils oxidize if exposed to the air. Oxidation results in subsidence of the wetland soils, which adversely impacts wetlands. Too much water as well as too little water can adversely impact wetlands. The combined effects of aquifer pumping and dewatering planned at the CMI site will adversely affect wetlands. No analysis was completed of the impacts to wetlands as a result of the combined effects of dewatering and pumping from the aquifer. No information regarding the normal range of wetland hydroperiods for preserved wetlands or other onsite unmined wetlands was introduced. No information was provided regarding the habitat functions provided by the wetlands on the CMI site either for threatened or endangered species or otherwise. ENVIRONMENTAL IMPACT The Applicant did not provide reasonable assurance that the water use will not cause unacceptable adverse impacts to environmental features on or off- site. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact to surface water bodies such as lakes, ponds, impoundments, springs, streams, canals, estuaries or other water courses. The Applicant did not provide reasonable assurances that there will be no adverse environmental impact to wetlands, lakes, streams, estuaries, fish, and wildlife or other natural resources. The Applicant did not provide reasonable assurances that there will be no adverse impacts to the surface water system or vegetation as a result of groundwater withdrawal. The Applicant did not provide reasonable assurances that the water use will not have an adverse impact by altering or impairing the habitat of threatened or endangered species. The Applicant did not provide reasonable assurances that the projected draw downs will not result in any adverse impact to any protected or non-protected plant or animal species. The Applicant did not provide reasonable assurances that the water use will not have an adverse environmental impact to wetlands.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of Southwest Florida Water Management District enter a Final Order DENYING the issuance of a Water Use Permit to the Applicant, CMI. DONE and ENTERED this 20th day of April, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs - 13, 14, 15, 21, 24, 31, 35, 38, 70, 71, 73, 75, 91, 97, 100, 104, 105, 114, 115, 116, 125, 126, 127, 128, and 129. Rejected as subsumed or irrelevant and immaterial: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 20, 22, 23, 25, 27, 28, 29, 30, 33, 34, 36, 37, 37A, 39 40, 43, 44, 45, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 72, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86,87, 92, 93, 94, 95, 96, 98, 99, 101, 102, 103, 106A, 106, 107, 108, 109, 110, 111, 112, 113, 117, 120, 121, 122, 123, 124, 130, 131, 132, 133, and 134. Rejected as against the greater weight of the evidence: paragraphs - 18, 26, 32, 41, 42, 46 (omitted), 47 (omitted), 69, 88 (omitted), 89 (omitted), 90 (omitted), 118 (omitted), 119 (omitted), and 135 (omitted). Proposed findings of fact submitted by Petitioner, Charlotte County. Accepted in substance: paragraphs - 1, 2, 7, 18, 19, 20, 22, 25, 28, 29, 36, 40, 41, 51, 59, and 62. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 23, 24, 26, 27, 30, 31, 32, 33, 34, 35, 37, 38, 39, 42, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56, 57, 58, 60, and 61. Rejected as hearsay: paragraphs - 43 and 44. Proposed findings of fact submitted by Petitioner, City of North Port. Accepted in substance: paragraphs - 1, 2, 3, 5, 6, 7, 9, 19, 20, 21, 22, 24(in part), 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 45, 47, 48, 49(in part), 50, 51, 52, 53, 54, 56, 57(in part), 58, 59, 60, 61, 63(in part), 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 78, 79, 80, 83, 84, 85, 86(in part), 87, 92, 93, 95, 96, 99, 104, 107, 108(in part), 109(in part), 112, 113, 114, 115, 116, 120, 122, 123, 126, 138, 139, 140, 141, 142, 143(in part), 144, 150, 153, 154, 155, 156, 159, 167, 168, 170, 171, 172, 173, 176, 177, 179, 180, 187, 193, 194, 195, 197, 198, 199, 200, 201, 202, 204, 205. Rejected as argument, subsumed or irrelevant and immaterial: paragraphs - 4(contained in Preliminary Statement), 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 23, 24(in part), 33, 43, 44, 46, 49(in part), 55, 57(in part), 62, 63(in part), 64, 76, 77, 81, 82, 86(in part), 88, 89, 90, 91, 94, 97, 98, 100, 101, 102, 103, 105, 106, 108(in part), 109 (in part), 110, 111, 117, 118, 119, 121, 124, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 143(in part), 145, 146, 147, 148, 149, 151, 152, 157, 158, 160, 161, 162, 163, 164, 165, 166, 169, 174, 175, 178, 181, 182, 183, 184, 185, 186, 188, 189, 190, 191, 192, 196, 203, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217. Proposed findings of fact submitted by Respondent/Petitioner Consolidated Minerals, Inc. and Southwest Florida Water Management District. Accepted in Substance: paragraphs - 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, 20, 21, 22(in part), 23, 24, 25(in part), 26, 27(in part), 28, 29(in part), 32, 33(in part), 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52(in part), 53, 54, 55, 56, 57(in part), 58, 62, 71, 82, 85, 87, 88, 91, 92(in part), 93, 94(in part), 95(in part), 96(in part), 97(in part), 100(in part), 101, 115, 119, 120, 123, 124(in part), 125(in part), 126(in part), 127(in part), 130(in part), 133(in part), 137, 138(in part), 139, 145. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 12, 13, 15, 16, 31, 36, 37, 38, 48, 51, 52(in part), 57(in part), 59, 60, 63, 80, 81, 83, 84, 86, 90, 94(in part), 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 116, 117, 118, 124(in part), 126(in part), 127(in part), 130(in part), 134, 135, 136, 138(in part), 140, 141, 142, 143. Rejected as against the greater weight of evidence: paragrahs - 22(in part), 25(in part), 27(in part), 29(in part), 30, 33(in part), 34, 35, 61, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 89, 92(in part), 95(in part), 96(in part), 97(in part), 98, 99, 100(in part), 102, 103, 121, 122, 125(in part), 128, 129, 131, 132, 133(in part), 144. Proposed findings of fact submitted by Petitoner, Environmental Confederation of Southwest Florida, Inc. Accepted in substance: paragraphs - 1, 2, 3, 4 6, 7, 17, 22, 26, 27, 28, 29, 30, 33(in part), 34, 35, 39(in part) 41, 42, 43, 45, 48, 53, 56, 57, 59, 60, 61, 62, 71, 73, 80, 81, 82, 85, 86, 87, 92(in part), 106, 107, 110, 112, 113, 114, 115, 116, 117, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139(in part), 140, 141, 142, 143, 144, 145, 148, 149, 150, 151, 152, 154, 155, 157, 158, 162, 163, 164, 165. Rejected as argument, subsumed, or irrelevant and immaterial: paragraphs - 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 23, 24, 25, 31, 32 33(in part), 36, 37, 38, 39(in part), 46, 47, 49, 50, 51, 52, 55, 58, 63, 64, 65, 66, 67, 68, 70, 72, 74, 75, 76, 77, 78, 79, 83, 84, 88, 89, 90, 91, 92(in part), 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 109, 111, 118, 119, 120, 146, 147, 153, 156, 159, 160, 161, 166, 167, 168. Rejected as against the greater weight of evidence: paragraphs - 44, 54, 69, 139(in part). COPIES FURNISHED: Rory C. Ryan, Esquire Roger W. Sims, Esquire HOLLAND & KNIGHT Suite 2600 200 S. Orange Avenue P. O. Box 1526 Orlando, Florida 32802 Vivian Arenas, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad St. Brooksville, Florida 34609 Mr. Alan R. Behrens Route 2, Box 725-A-32 Arcadia, Florida 33821 Matthew G. Minter, Esquire County Attorney 18500 Murdock Cr. Port Charlotte, Florida 33948-1094 David M. Levin, Esquire ICARD, MERRILL, CULLIS, TIMM, FUREN & GINSBURG PO Box 4195 Sarasota, Florida 34237 Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund PO Box 1329 Tallahassee, Florida 32302 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Petitioner seeks to irrigate 450 acres of pasture land. In preparing its application Petitioner consulted the soil conservation office to obtain the amount of water required under extreme drought conditions. Petitioner's maximum pumping capacity is 2,500 gallons per minute, 108 million gallons per month, or 5.56 gallons per acre per minute. The longest period in which applicant recalls running its pumps continuously was 3 weeks. This occurred during a drought period and after the pumps had been out of operation for an extended period. During normal drought conditions Petitioner would expect to run its pumps 18 days per month. At the pumping capacity available to Petitioner this would amount to 64.8 million gallons of water per month. The maximum monthly allocation recommended by Respondent was 66 million gallons. The source of water from which an allocation is sought is the Florida aquifer and none of the water removed therefrom by this Petitioner will return. The Florida aquifer for which the water herein requested will be obtained is presently being mined, i.e. more water is being withdrawn therefrom than is going back into the aquifer. In evaluating the application the C&SFCD engineer took the 30 to 40 years annual rainfall, the consumptive water use for the crops to be grown and the difference between these figures as the annual supplemental irrigation required. Correcting these figures for evapotranspiration rates and allowing for drought conditions occurring 2 out of 10 years the figures of 66.5 million gallons, or 263 acre feet per month maximum usage was reached. Respondent proposed two special conditions upon the Petitioner. One, that Petitioner submit a water quality analysis from the pump discharge in May and October of each year. The second condition was that a measuring device be installed upon the pump to measure the amount of water pumped. The water quality analysis will cost Petitioner approximately $70 per year for the test alone. An hours of operation clock on the pump will suffice for the water measuring device.
