The Issue The issue in this case is whether the St. Johns River Water Management District (District) should issue a consumptive use permit (CUP) in response to Application Number 99052 filed by the City of Titusville and, if so, what CUP terms are appropriate.
Findings Of Fact Area II and III Wellfields On February 10, 1998, the District issued CUP 10647 to the City of Titusville, authorizing the withdrawal of an annual average of 6.5 mgd from the City's Area II and Area III Wellfields, 5.4 from Area II and 1.1 from Area III. These wellfields are owned and operated by the City and are located within its municipal boundaries. They produce water from the SAS. The Area II Wellfield is located near I-95 in the northeastern portion of the City and consists of shallow wells primarily constructed between 1955 and 2002. It consists of 53 production wells, of which 31 are considered to be of primary use. The City replaced 16 Area II production wells in 1995 and 4 production wells in 2000 and is currently considering the replacement of 4 additional wells. The Area III Wellfield is located in the south-central portion of the City’s service area. It consists of 35 production wells, of which 18 are considered to be of primary use. Petitioners contend that both the "safe yield" (the quantity of water the City can withdraw without degrading the water resource) and the "reliable yield" (the quantity of water the City can dependably withdraw) of the Area II and III Wellfields are the permitted limits of 5.4 and 1.1 mgd, respectively. The City and the District contend that saline intrusion into the SAS has reduced the safe and reliable yields to significantly less than the permitted amounts at this time. Historically, the Area II Wellfield was the most productive wellfield. Prior to 1988, the City relied entirely on the Area II Wellfield and pumped almost 5 mgd from it at times. Since then, several Area II wells have shown signs of water quality degradation that has resulted in a reduction in pumping to better stabilize water quality levels. For the past five years, the City has only pumped approximately 3 mgd on an annual average basis from the Area II Wellfield. Chloride concentrations exceeding 250 mg/l have been recorded in 16 Area II production wells. Chloride concentrations exceeding 250 mg/l have been recorded in 22 Area III production wells. About 10 wells in the Area II and III Wellfields have been abandoned because of water quality degradation. At the Area II Wellfields there are 10 wells whose use is impaired because of water quality issues. At the Area III Wellfields there are 15 wells whose use is impaired because of water quality issues. Area III has had serious chloride problems, with concentrations at or near 200 mg/l for much of the mid-90's. In the Area III Wellfield, the Anastasia wells have the best water quality. However, these wells have also seen increasing concentrations of chlorides, with one well over 200 mg/l. According to information introduced into evidence by the City, it appears that Area III began to have chloride problems primarily due to over-pumping.5 The City pumped far in excess of permit limits from Area III during the early 1990's, including almost twice the permit limit in 1990 and 1.5 times the limit in 1991. While chlorides were between 77 and 92 mg/l in 1990-92, they began to rise in 1993 and were between 192 and 202 mg/l for the rest of the decade. Area III production declined in 1997 to approximately 0.66 mgd and declined further to a low of approximately 0.5 mgd in 1999. In 2000, chlorides fell to approximately 138 mg/l and then rose to approximately 150 mg/l in 2002-04, while production gradually rose to close to the permit limit in 2002 and 2003, before dipping to 0.75 mgd in 2004. In 2005, production was back up to 1 mgd, and chlorides were approximately 87 mg/l. During the five years from 2001 through 2005, the City has pumped an annual average rate of approximately 1 mgd from Area III. In contrast, Area II has not been over-pumped during the same time period. Area II production generally declined from a high of 4.146 mgd in 1992 to a low of 2.525 mgd in 2000, except for an increase of approximately 0.25 mgd between 1997 and 1998. During this time, chlorides generally declined from a high of 124 mg/l in 1993 to approximately 68 mg/l in 2000, with the exception of a rise to approximately 111 mg/l in 1999. Area II production then generally increased through 2003 to approximately 3.000 mgd, where it remained in 2004 before declining to approximately 2.770 mgd in 2005. Area II chlorides were approximately 113 mg/l in 2001, 109 in 2002, 86 in 2003, 76 in 2004, and 83 in 2005. During the five years from 2001 through 2005, the City has pumped only an annual average rate of 2.86 mgd. In 1995, the City entered into a contract with the City of Cocoa requiring the City to pay for at least 1 mgd each year, whether the City actually takes the water or not (the "take-or-pay" clause). Using the Cocoa water allowed the City to reduce production from Area III without a corresponding increase in production from Area II. Water conservation measures implemented since 1998, including conservation rates, have since reduced per capita water use. In 2002, the contractual take-or-pay requirement was reduced to 0.5 mgd. After 2002, purchases of Cocoa water have amounted to 0.576, 0.712, and 0.372 mgd on an annual average basis. As a result, since at least 1990 Area II has not been required to produce at its permitted limit. It is not clear exactly what the City believes to be safe and reliable yields at this time from Areas II and III. In its PRO, the City took the position that the total reliable yield is 3.5 to 4 mgd, of which 2.25 to 2.5 mgd is attributable to the Area II Wellfield and 0.75 mgd is attributable to the Area III Wellfield. However, its consultant, Mr. Patrick Barnes, testified that the City's current reliable yields are 3 mgd from Area II and 1 or 1.1 mgd from Area III. He testified that the safe yield from Area II would be approximately 3.5 mgd. The District has not formulated an opinion as to the exact of amount of water that can be produced from the Area II and III Wellfields on a sustainable basis. However, the District believes that recent production levels, which have resulted in a stabilization of chloride concentrations, may be the most production that can be sustained from these facilities without adverse water resource impacts. That would mean approximately 4.5 mgd on an annual average basis from Areas II and III combined. It might be possible for the City to expand the reliable yield of the Area II Wellfield by constructing additional wells or through some other measures. But Brevard County’s North Brevard Wellfield, located immediately north of the City’s Area II Wellfield, utilizes the same SAS used by the Area II Wellfield, and Brevard County recently received an increased permitted allocation from the District for this facility. This would limit the City’s ability to expand the current production of water from the Area II Wellfield. Other limitations on expansion of production from Areas II and III include: the relatively high risk of contamination of the SAS from pollution sources such as underground petroleum storage tanks; the limited space available in an increasingly urbanized area for the construction of new wells; the chronic bio-fouling and encrustation of wells due to the high iron content of the SAS; and the low specific capacity of each production well. For these reasons, it is not clear at this point in time whether it is possible to sustain more water production from Areas II and III than the City has pumped in recent years. B. Area IV Application and TSR On March 6, 2001, the City of Titusville submitted its application to modify CUP 10647. Included in this application was a proposal to add a new Area IV Wellfield in northwest Brevard County to pump up to 2.75 mgd from the UFAS. The District issued a series of seven Requests for Additional Information in between April 5, 2001, and March 23, 2004. On December 15, 2004, the District issued its initial TSR for the CUP modification application. That TSR proposed to authorize the use of 2.75 mgd from the UFAS and 0.18 mgd of groundwater from the SAS from the proposed Area IV Wellfield and 3.3 mgd of groundwater from the SAS from the existing Area II and Area III Wellfields to serve a projected population of 56,565 in 2008. There was no request to extend or renew the permit, which expires February 10, 2008. Miami Corporation filed a petition challenging this TSR. On May 13, 2005, the City submitted a revised application for a separate Individual CUP for the Area IV Wellfield, rather than modifying its existing CUP 10647 to include the new wellfield, with a permit expiration of December 31, 2010. On May 25, 2005, the staff issued a revised TSR. That TSR proposed a new permit to authorize up to 2.75 mgd of groundwater from the UFAS and 0.178 mgd of groundwater from the SAS from the proposed Area IV Wellfield to serve a projected population of 59,660 in 2010. The revised TSR noted that the proposed permit expiration date for the Area II and Area III Wellfields would remain February 10, 2008. Vergie Clark filed a petition challenging the revised TSR, as did Miami Corporation. After various notices on the TSR and the revised TSR to interested persons in Brevard County, in August 2005 the District issued additional notice to interested persons in Orange, Seminole and Volusia Counties. As a result, all required public notices have been issued. On March 14, 2006, the City again revised its application, and on May 1, 2006, the District issued its second revised, and final, TSR--which is the TSR now at issue. The TSR at issue recommended that a CUP be issued to Titusville for 2.75 mgd of groundwater from the UFAS and .18 mgd of groundwater from the SAS for wetland hydration and aquifer recharge from the Area IV Wellfield on an annual average basis to serve a projected population of 63,036 in 2010. This TSR provided that the proposed permit would expire December 31, 2010. TSR at Issue Water Use Allocation The CUP recommended by the TSR would only grant the City a water allocation from the Area IV Wellfield for 2009 and 2010. The recommended CUP would allow the City to withdraw water from the Area IV Wellfield at an annual average rate of 2.75 mgd during those years for public supply. (Other Condition 4) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 3.85 mgd during the four consecutive months of the dry season, which can occur during any time of the year. If 3.85 mgd is withdrawn during this four-month period, the withdrawal rate for the remaining 8 months cannot exceed 2.21 mgd. (Other Condition 8) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 4.41 mgd during any single month. (Other Condition 7) The CUP recommended by the TSR would limit the City’s potable water allocation from the Area IV Wellfield to a maximum rate of 6.5 mgd during any single day during a severe drought, when the existing sources (meaning Areas II and III) cannot be used without inducing water quality degradation or exceeding permitted quantities. (Other Condition 9) The CUP recommended by the TSR would allow the City to withdraw water from the SAS extraction wells at an annual average rate of up to 0.178 mgd in 2009 and 2010 for wetland hydration and surficial aquifer recharge. (Other Condition 6) The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined annual average rate of 5.79 mgd in 2009 and a combined annual average rate of 6.01 mgd in 2010. The CUP recommended by the TSR would limit the withdrawal of water from the Area II, III and IV Wellfields to a combined maximum daily rate of 8.88 mgd in 2009 and 9.0 mgd in 2010. (Other Conditions 5, 9) The CUP recommended by the TSR would reduce Titusville's combined annual average and maximum daily allocations from the Area II, III and IV Wellfields in 2009 and 2010 by an amount equivalent to the quantity of water purchased from the City of Cocoa during each year. (Other Conditions 5, 9) Other Condition 10 in the recommended by the TSR notifies the City that nonuse of the water supply allocated by the CUP for two years or more is grounds for revocation by the District's Governing Board, permanently and in whole, unless the City can prove that its nonuse was due to extreme hardship caused by factors beyond the City's control. Permit Duration The CUP recommended by the TSR would not allow the City to withdraw water from the Area IV Wellfield earlier than January 1, 2009; as indicated, it would expire on December 31, 2010. (Other Conditions 2, 4). Saline Water Intrusion The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed saline water monitoring plan by sampling and analyzing Saline Water Monitor Wells SWMW 1-6 and UFAS production wells 401, 403, 405, 407, 409, 411, 413 and 415 quarterly for water levels, chloride and total dissolved solids. (Other Condition 11) The CUP recommended by the TSR contains a permit condition authorizing the District to modify the allocation granted to the City in whole or in part or to otherwise curtail or abate the impact in the event of saline water intrusion. (Other Condition 14) The CUP recommended by the TSR contains a permit condition requiring the City to cease withdrawal from any UFAS production well, if any quarterly water sample from that well shows a chloride concentration exceeding 250 mg/l. That same condition would limit the operation of any UFAS production well with a quarterly sample exceeding 250 mg/l to six hours per day with a minimum 24 hours recovery between pumping cycles if subsequent samples contain chloride concentrations between 200 mg/l and 249 mg/l. (Other Condition 25) Environmental Impacts and Avoidance and Minimization The CUP recommended by the TSR contains a permit condition requiring the City to implement the proposed environmental monitoring plan for hydrologic and photo- monitoring at 16 wetland sites within one year of permit issuance and to establish a baseline prior to the initiation of groundwater withdrawals. That same condition requires the City to collect water level data at each wetland site either on a daily or weekly basis and report to the District every six months in District-approved, computer-accessible format. (Other Condition 12) The CUP recommended by the TSR contains a permit condition authorizing the District to revoke the permit in whole or in part or to curtail or abate impacts should unanticipated adverse impacts occur to wetlands, lakes and spring flow. (Other Condition 23) The CUP recommended by the TSR contains a permit condition authorizing the District to require the City to implement the proposed avoidance and minimization plan should unanticipated impacts occur to Wetland A4-2 (a shallow marsh near the middle of the wellfield) within 90 days of notice by the District. That same permit condition authorizes the District to require the City to submit a wetland rehydration plan for any other adversely affected wetland within 30 days of notice by the District and to implement the plan without 90 days of approval by the District. The District would require the City to implement avoidance measures before the wetlands are actually allowed to suffer adverse impacts. (Other Condition 24) Impacts to Other Existing Legal Users of Water The CUP recommended by the TSR contains a permit condition authorizing the District to require mitigation of any unanticipated interference to existing legal users of water due to withdrawals from the Area IV Wellfield. Mitigation may include installation of a new pump or motor, installation of additional drop pipe, new electrical wiring, connection with an existing water supply system, or other appropriate measures. (Other Condition 15) Water Conservation Measures and Reuse The City is implementing extensive water conservation measures. The City’s water conservation plan includes public education measures (e.g., televised public service announcements, helping to create water conservation videos and distributing them to the public, commissioning an award winning native plant mural, providing exhibits and speakers for public events), toilet and showerhead retrofits, and a water conservation based rate structure. A water conservation rate structure provides the potable water customer with an economic incentive to use less water. The most common conservation rate structure is a tiered-rate whereby the cost per gallon of water increases as the customer uses more water. While the District reviews the rate structure to evaluate whether it will achieve conservation, it does not mandate the cost per gallon of water. An audit of the City’s potable water distribution system was conducted and recent water use records were evaluated to determine if all necessary water conservation measures were in place. The audit indicated that the potable water system has small unaccounted-for water losses, approximately 6.5 percent, and relatively low residential per capita water use. The City has implemented a water conservation plan that implements rule requirements; as a result, the City has provided reasonable assurance that it is implementing all available water conservation measures that are economically, environmentally, or technologically feasible. The City cannot use reclaimed water to meet its potable water demands associated with direct human consumption and food preparation. However, reclaimed water can be used to replace that part of the City’s allocation that is associated with irrigation-type uses. The City has operated a reclaimed water reuse system since 1996. It is projected that 67 percent of the available wastewater flows will be utilized by 2010 for irrigation, with the remainder going to a wetland system during wet weather periods when irrigation demands are low. The City is using reclaimed water to the extent it is economically, environmentally and technologically feasible. In the case of public supply, the District looks to the amount of water requested for each person in a projected population in determining whether the water will be used efficiently. The metric that the District normally considers when conducting this part of the evaluation is the per capita usage. Population Projections and Per Capita Water Use As indicated, the proposed CUP would expire on December 31, 2010. Although the City and District would anticipate an application for renewal to be filed, demand for water projected beyond December 31, 2010, is not relevant to the need for the proposed CUP. In the case of public supply, projected demand for water usually is calculated by multiplying the projected population times per capita water use. Gross per capita (“GPC”) use in gallons per day (gpd) is the type of metric normally used to project demand for public supply of water. It is based on residential use and all other water uses supplied by the utility, including commercial, industrial, hotel/motel, and other type uses. That includes supply necessary to meet peak demands and emergencies. DEP requires that every public water supply system have an adequate water supply to meet peak demands for fire protection and health and safety reasons. If peak demands are not met, a major fire or other similar catastrophe could depressurize a public water system and possibly cause water quality problems. Projections of need for water in the future must take into account peak demands and emergency needs. Water used for those purposes is included in the historical average daily flows (ADF) from which historical GPC is derived. Unless there is good information to the contrary, in projecting GPC one assumes that those uses will increase roughly in proportion to the residential use. City's Projection Contending that the University of Florida Bureau of Economic and Business Research (BEBR) does not estimate or project population for municipalities, and that BEBR projections are based on historical trends that would under-project population in the City, the City used a different source and method to project population in the City's water service area on December 31, 2010. For its method, the City had Courtney Harris, its Planning Director, project the number of dwelling units that would be developed and occupied in 2011, calculating the additional people associated with each unit (based on the 2000 Census, which identified 2.32 as the average number of persons per dwelling unit in the City), and adding the resulting number to the City’s existing service area population as of 2005. The City's method yielded various results depending on when proposed developments in the City were reviewed. Ultimately, the City projected a population of 60,990 at the end of 2010. The City's method depends on the ability of its Planning Director to accurately predict the timing of new residential construction and sales, which is not easy to do (as indicated by the different results obtained by the City over time), since there are many factors affecting residential development and the real estate market. The ultimate predictions of the City's Planning Director assume that residential development will continue at an extraordinarily high pace although there already was evidence of downturn. The City's method also assumed that all new units will be sold (which, again, is contingent on market conditions) and fully occupied (although a 90 percent occupancy rate would be a more realistic.) The method also does not account for decreases in population in a number of areas in the Titusville service area (while overall population increased, mostly as a result of growth that has been occurring in a single census tract.) The City's witnesses then calculated a per capita water use rate by averaging the actual rates for the 11 years from 1995 through 2005, which resulted in projected per capita water use rate of 100.35, and a projected demand of 6.12 mgd at the end of 2010. The justification for averaging over 11 years, instead of the last five years, was that the last five years have been unusually wet, which would depress demand to some extent. However, using 11 years also increased the average water use by taking into account the higher use rates common before conservations measures, including conservation rates, went into effect (in particular, 123.75 gpd for 1995, 122.36 gpd for 1996, and 109.94 gpd for 1998.) Since 1998, and implementation of the conservation rates and other measures, water use rates have been significantly lower. While the average over the last 11 years was 100.35 gpd, the average over the last five years (from 2001- 2005) was just 92.15 gpd. Averaged since 1998, the City's water use rate has been 93.34 gpd. While wetter-than-normal conditions would be expected to depress water use to some extent due primarily to decreased lawn irrigation, many of the City's water customers have private irrigation wells for this purpose. Besides, Mr. Peterson, the City's Water Resources Manager, testified that not many of the City's water customers use potable water for lawn irrigation due to the new conservation rates. Petitioners' Projection Miami Corporation's population expert, Dr. Stanley Smith, is the Director of BEBR. Dr. Smith projected the population for the City's service area by first developing an estimate of the population of the water service area in 1990 and 2000 using block and block group data, and then using those estimates to create estimates from 2001-2005. Dr. Smith then projected population in the City's water service area using a methodology similar to what BEBR uses for county projections. Dr. Smith's methodology used three extrapolation techniques. He did not use a fourth technique, often used at BEBR, called shift-share, because he believed that, given Titusville's pattern of growth, using shift-share might produce projections that were too low. In developing his final projections, Dr. Smith also excluded the data from 1990 to 2000 because growth during that period was so slow that he felt that its inclusion might result in projections that were too low. Dr. Smith's approach varied slightly from the typical BEBR methodology in order to account for the fact that the City's growth has been faster since 2000. Dr. Smith applied an adjustment factor based on an assumption also used by the City's expert that 97.3 percent of the projected population within the City's water service area in 2010 would be served by the City. Using his method, Dr. Smith projected the population of the Titusville water service area to be 53,209 on December 31, 2010. Based on recent population estimates, Dr. Smith believes that, if anything, his projections are too high. It was Dr. Smith's opinion from the data that the annual increases for Titusville and the Titusville water service area peaked in 2003 and that they had been declining since that time. That was especially true of 2006, when the increase was the smallest that it had been for many years. Petitioners' expert, Mr. Drake, calculated a per capita water use rate by averaging the actual rates for the most recent five years (2002-2006), which resulted in a per capita water use rate of 89.08 gpd, and a projected demand of 4.74 mgd at the end of 2010. He also calculated a per capita water use rate for 2006, which came to 88.65 gpd, which would give a slightly lower projected demand of 4.72 mgd. Ultimate Finding of Projected Water Demand Based on all the evidence, it is found that Dr. Smith's projection of the population that will use City water on December 31, 2010, is more reasonable than the City's projections. The City and District contend that, regardless of the calculated per capita water use rate, it is appropriate to base the City's allocation on a rate of 100.35 gpd because 90 to 100 gpd is very conservative per capita water use rate for a public water supply utility. However, the allocation should be based on the best estimate of actual demand, not a general rate commonly assumed for water utilities, even if conservative. The City and District also contend that it is appropriate to base the City's allocation on a higher use rate because the climatic conditions experienced in the City over what they considered to be the most recent five years (2001- 2005) have been average-to-wet. More rainfall generally means less water use, and vice-versa, but the greater weight of the evidence proved that the City's demand for water has not varied much due to climatic conditions in recent years (after implementation of conservation measures, including conservation rates.) (City Exhibit 19, which purported to demonstrate the contrary, was proven to be inaccurate in that it showed significantly more water use during certain drier years than actually occurred.) However, in 2000--which was after the implementation of conservation rates and also the City's driest year on record (in approximately 75 years)--the water use rate was approximately 97.5 gallons per person per day. An average of the last eight years (1999-2006), which would include all years clearly responsive to the conservation rates as well as the driest year on record, would result in a per capita water use rate of approximately 92.8 gpd, and a projected demand of approximately 4.94 mgd by December 31, 2010. The District argues in its PRO that, because a CUP water allocation is a legal maximum, it would be inappropriate to base the City's water allocation on demand during a wet or even an average year (which, it says, would set the permittee up to violate its permit requirements 50 percent of the time). If, instead, the City's water allocation were based on demand during 2000, the driest year on record, projected demand would be approximately 5.2 mgd on December 31, 2010. Those calculated water allocations--i.e., either the 4.94 mgd or the 5.2 mgd--would then be compared to the probable safe and reliable yield of 4.5 mgd from Areas II and III to determine the deficit on an annual average basis. Allowing a reasonable margin of error for the uncertainties of the predictions involved, a reasonable maximum annual average allocation for the proposed Area IV Wellfield would be 0.75 mgd. Mr. Jenkins suggested in rebuttal that, if the need for water is less than that set out in the proposed CUP in the TSR at issue, a CUP should nonetheless be issued but with lower water allocations. While the evidence supports a reduction of the annual average limit from 2.75 mgd to 0.75 mgd, there was insufficient evidence to show how the other water allocation limits in the proposed CUP should be changed. For the past 12 years, the City of Titusville has been able to purchase water under a contract with the City of Cocoa to meet all of its demands, including any peak or emergency water demands. Under the take-or-pay provision in the contract currently in effect, the City must pay for 0.5 mgd and presumably would take and use at least that amount so long as the contract remains in effect. This would reduce the City's projected water supply deficit through the end of 2010, and the City could rely on the Cocoa contract to cover any additional demand through the end of 2010 without Area IV. However, under the contract, the City can give notice on or before April 1 of the year in which it intends to terminate the contract effective October 1 of the same year. If a CUP for Area IV is issued, the City could terminate the current contract effective as early as October 1, 2008. It also is possible that the contract could be negotiated so that its termination would coincide with the time when the Area IV Wellfield becomes operational if not near October 1 of the year. As indicated, even if the contract remains in place, to the extent that the City receives water from the City of Cocoa for potable use during either 2009 or 2010, the allocations under the proposed TSR will be reduced an amount equivalent to the quantity provided to the City by Cocoa in that year. Finally, as indicated, the existing CUP for Areas II and III is set to expire in February 2008. Although it is anticipated that the City will apply to renew the existing CUP for Areas II and III, and that the District will approve a renewal at some level, it is not clear how much production will be approved for Areas II and III for the years 2009 and 2010. Meanwhile, the CUP proposed for Area IV provides that the combined annual groundwater withdrawals for public supply for the Areas II, III, and IV may not exceed 5.79 mgd for 2009 and 6.01 mgd in 2010. Based on the findings in this case, those figures should be reduced to no more than 5.2 mgd, and it must be anticipated that a similar condition would be placed on any renewal of the existing CUP for Areas II and III as well. Site Investigation At the time the City decided to apply for a CUP for Area IV, it was known that the UFAS in much of Brevard County was not suitable as a source of potable water supply, but there was believed to be a tongue of the UFAS in the northwest corner of the County and extending towards the southeast, and narrowing in that direction, that might be suitable for that purpose, particularly in the upper part of the aquifer. Because there was insufficient information to adequately evaluate the whether proposed Area IV, which was located along the Florida East Coast Railway (FEC) Right-of-Way (ROW), could be used for that purpose, the City’s consultant, Barnes, Ferland and Associates (BFA), designed a drilling and testing program to collect site-specific information in order to characterize the groundwater quality, identify the thickness of the freshwater zone in the UFAS, and determine hydraulic parameters for the groundwater system. In addition, DRMP conducted an environmental assessment of the Area IV Wellfield and surrounding property. The drilling and testing program designed by BFA for the Area IV Wellfield was similar to other hydrogeologic investigations conducted in the region with respect to wellfields operated by the City of Edgewater, the City of New Smyrna Beach, the City of Ormond Beach, the Orlando Utilities Commission and Orange County. The drilling and testing program for the Area IV Wellfield included Time-Domain Electromagnetic Mapping ("TDEM") performed by SDII Global, a consultant retained by the District. TDEM is not typically used for the hydrogeologic investigation of a new wellfield. The TDEM technique involves estimating the depth to the 250 mg/l and 5,000 mg/l chloride concentration in the groundwater system using electrical resistivity probes. The technique was applied at four locations along the FEC Right-of- Way. In addition to the TDEM study, BFA installed three test production wells along the FEC ROW, collected lithologic samples with depth, performed borehole aquifer performance and step drawdown tests at two test sites and recorded water quality with depth through grab and packer samples. The northernmost test production well was Test Site 1, which corresponds to Area IV production well 401. The middle test production well was Test Site 3, which corresponds to either Area IV Well 412 or Area IV Well 413. The southernmost test production well was Test Site 2, which is located approximately 1.5 miles south of the southernmost Area IV production well. Test Sites 1 and 2 were constructed first and Test Site 3 was drilled later because of unfavorable water quality conditions encountered at Test Site 2. Test Site 1 is located on the FEC ROW approximately 430 feet southeast of the Volusia-Brevard County line. At Test Site 1, BFA installed a test-production well (UF-1D), a UFAS monitor well (UF-1S), and a SAS monitor well (SA-1) in 2001. In 2005 BFA installed two additional SAS monitor wells (MW-1 and RW-1) near Test Site 1. The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 250 feet below land surface and cased to a depth of 105-110 feet below land surface. Test Site 2 is located on the FEC ROW approximately 2.8 miles southeast of the Volusia-Brevard County line. At Test Site 2, BFA installed a single UFAS Monitor Well (UF-2S). The monitor well was drilled to a total depth of 210-220 feet below land surface. Test Site 3 is located on the FEC ROW approximately 1.4 miles southeast of the Brevard-Volusia County line. At Test Site 3, BFA installed a test production well (UF-3D), a UFAS monitor well (UF-3S), and a SAS monitor well (SA-3). The test production well was drilled to a depth of 500 feet below land surface and then back-plugged to a depth of 210 below land surface.. Since Test Site 3 is either Area IV Well 412 or 413, and assuming production well 415 will be located 1,200 feet southeast of Test Site 3, this means that Test Site 2 is located at least one mile southeast of the southernmost Area IV production well. Test Sites 4 and 6 are located approximately three miles southeast of Brevard-Volusia County line. SAS test production wells were constructed at both sites to a total depth of about 20-30 feet below land surface. The site-specific hydrogeologic data collected by BFA as part of the drilling and testing program verified the groundwater basin and flow direction shown in Figure 15 of City Exhibit 523. DRMP’s environmental assessment of the Area IV Wellfield spanned the period from 2002 through 2006. In Spring 2002, DRMP evaluated areas within the predicted 0.2 foot drawdown contour by assessing wetland vegetation, photographing wetlands, noting wetland hydrologic conditions, investigating soil condition and wildlife utilization and evaluating surrounding land uses and natural communities. In Fall 2002, DRMP evaluated potential monitoring sites both on and off Miami Corporation's property by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and wildlife utilization, evaluating surrounding land use and natural communities and locating suitable control sites. In Fall 2003, DRMP evaluated potential wetland monitoring sites near the southernmost Area IV production wells by assessing wetland vegetation composition and hydrologic conditions, investigating soil conditions and evaluating surrounding land uses and natural communities. In Spring 2005, DRMP assessed wetlands surrounding the Area IV Wellfield by evaluating wetland vegetation composition and hydrologic conditions, photographing wetlands, investigating soil conditions, evaluating surrounding land use and natural communities and collecting GPS points. In Fall 2005, DRMP investigated the Clark property by evaluating wetland vegetation and hydrologic conditions, photographing wetlands, investigating soil conditions and wildlife utilization and evaluating surrounding land uses and natural communities. In Spring 2006, DRMP developed a revised environmental monitoring plan and avoidance and minimization plan based on the new SDI MODFLOW Model by locating the final wetlands monitoring sites, developing the hydrologic and vegetative monitoring protocol, establishing the scope of the baseline study, reviewing the preliminary pipeline routing, construction and discharge inlet structures and preparing and submitting plan documents to the District. DRMP evaluated the occurrence of listed animal and plant species in the vicinity of the Area IV Wellfield as part of its environmental assessment. DRMP reviewed the Natural Areas Inventory for the Area IV Wellfield site, which identifies occurrences of listed species within a designated area. Additionally, DRMP made note of animal and plant species during the site visits in 2002, 2003, 2005, and 2006. DRMP evaluated the Farmton Mitigation Bank as part of its environmental assessment. DRMP reviewed the permit files for the Farmton Mitigation Banks, including the annual environmental monitoring reports prepared by Miami’s consultants. In 2005, DRMP conducted a field assessment of the Clark property including a thorough investigation of the fish pond, which Petitioners claim was adversely impacted during one or more of the APTs conducted by the City at the Area IV Wellfield. It was not necessary for the City’s environmental consultants to visit each and every wetland in the vicinity of the proposed Area IV Wellfield. Typically, only representative wetland sites are visited during the environmental assessment process. The scope of the City's hydrologic and environmental investigation of the Area IV Wellfield was adequate and consistent with industry standards and the District protocol for testing aquifers and characterizing aquifer performance and groundwater quality at the site. Nonetheless, Petitioners contend that there were serious deficiencies in the investigation's implementation and that additional investigation should have been performed. Hydrostratigraphy The SAS at the Area IV Wellfield is 40-to-50 feet deep and is composed primarily of unconsolidated sand, shell and silt. The intermediate confining unit (ICU) at the Area IV Wellfield consists of the Hawthorne Group and ranges in thickness from 40 to 60 feet. The top of the ICU is located 40- 50 feet below land surface and the bottom of the ICU is located 100 feet below land surface. This unit is composed of varying amounts of sand, shell, silt, indurated sandstone, clay, and some limestone. It tends to restrict the movement of water from the SAS to the UFAS. The UFAS at the Area IV Wellfield is a fairly homogenous limestone unit, which starts approximately 100 feet below land surface and extends to about 450 feet below land surface or 425 feet below mean sea level. It consists of the Ocala Group and grades into the upper portion of the Avon Park Formation. The middle confining unit (MCU) at the Area IV Wellfield starts at approximately 450 feet below land surface or 425 feet below mean sea level and ends approximately 1,000 feet below land surface. It comprises a denser, fine-grained dolomitic limestone within the Avon Park Formation. The MCU restricts the movement of water between the UFAS and LFAS. The location of the MCU at the Area IV Wellfield was determined by examining cuttings and video logs collected during drilling performed at Test Sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. The MCU can be distinguished from the UFAS by the presence of both dolomite and limestone. The lithologic log for Test Site 1 indicates the presence of gray/tan limestone between 450 and 460 feet below land surface and light/gray limestone and dolomitic limestone between 460 and 470 feet below land surface. The lithologic log for Test Site 3 indicates the presence of tan dolomitic limestone between 450 and 460 feet below land surface and tan limestone and dolomitic limestone between 460 and 470 feet below land surface. After examining the video log for Test Site 1, Petitioners’ expert, Dr. Thomas Missimer, noted a “lithologic change” at 477 feet below land surface. Other characteristics of the MCU are a lower resistivity and a sharp decrease in flow. The data collected at Test Site 1 shows a reduction in resistivity at approximately 470 feet below land surface. The flow meter log for Test Site 1 exhibits a decrease in flow at approximately 450 feet below land surface. Petitioners’ experts, Thomas Missimer, Alge Merry, and Bruce Lafrenz contend that the top of the MCU at the Area IV Wellfield is located deeper than 450 feet below land surface or 425 feet below mean sea level. This contention is based on regional reports, the geophysical logs reported by BFA, and one of the packer tests conducted at the bottom of the test wells that showed a pumping rate of 85 gpm. The greater weight of evidence indicates the top of the MCU at the Area IV Wellfield starts at the elevation identified by BFA. The regional reports are not based on data collected from the immediate vicinity of the Area IV Wellfield. Additionally, the BFA's professional geologists who determined the top of the MCU included Joel Kimrey, who was the former head of the local USGS office, and had more experience with the hydrogeology of the MCU in Brevard and Volusia than any of the Petitioners’ geologic experts. Also, the BFA geologists had access to the drill cuttings, which were unavailable to the Petitioners’ experts when they made their determination. Finally, the pumping rate recorded during the packer test could be explained by an area of higher permeability within the MCU. More likely, the packer may have been partially open to the bottom of the UFAS. The Lower Floridan Aquifer System (LFAS) starts at about 1,000 feet below land surface and ends approximately 2,300 feet below land surface. Head Difference Data Head refers to the pressure within an aquifer. In an unconfined aquifer, it is the water table. In a confined or semi-confined aquifer, it is the level to which water would rise in a well penetrating into the aquifer. Head difference refers to the numerical difference between two water levels either in different aquifer at the same location or different locations in the same aquifer. In the context of the Area IV Wellfield, static head difference is the difference between the elevation of the water table in the SAS and the elevation of the potentiometric surface of the UFAS under non-pumping conditions at the same location. The static head difference reflects the degree of confinement in the ICU. If the static head difference between the SAS and UFAS is a large number, this indicates a high degree of confinement between the two systems. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006 and calculated the head difference based on those measurements. District expert, Richard Burklew, was present when the measurements were taken in April 2004 and July 2006 and verified the readings made by the City’s consultants. During all three sampling events a downward head gradient was noted at each site, which means the water table had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head difference at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. Finally, in July 2006, the measured head difference at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of those observed head differences was 7.46 feet. At the time the head difference measurements were taken in July 2006, the region had experienced a rainfall deficit of 17 inches over the prior 12 months. Petitioners contend that the rainfall deficit may have skewed that head difference observation. However, according to the District’s expert, Richard Burklew, this would not necessarily have affected the head difference measurements because the hydrologic system would seek equilibrium, and the head difference would be the same. BFA collected static head difference measurements from Test Sites 1, 2 and 3 during both wet and dry seasons. The measurements do not show significant differences between seasons. Head difference data collected from hundreds of other Florida locations also do not show significant differences between seasons. This suggests that static head difference remains fairly constant at the Area IV Wellfield year round. Water level measurements taken by the City’s consultants from the wells on Clark’s property and reported in City Exhibit 52 do not determine static head difference between the SAS and UFAS because the exact construction of the wells was unknown, the completion depth of certain wells was unknown, the operational history of the wells was unknown, and the putative SAS well was located several hundred feet away from the UFAS well. For example, the depth of one of the wells is reported as 57 feet, which could easily be located in the ICU. If that is the case, then the head difference measured by comparing to the water level in this well would only be the head differential between the ICU and the UFAS. Finally, the Clark property is located in a more elevated region than Test Sites 1, 2, and 3, which means the water table will be lower and the head difference will be less than at the Area IV Wellfield. Water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 on Miami Corporation’s property do not determine static head difference between the SAS and UFAS because critical information concerning the construction of these wells is unknown. Additionally, the wells are much shallower than test production wells at Test Sites 1, 2 and 3. The water level measurements reported in the driller’s completion log for Wells 4175, 4176, 4177, and 5230 are not necessarily inconsistent with head difference measurements collected by BFA at Test Sites 1, 2 and 3. The head differences at these four well sites could be 6, 4, 7, and 6 feet, respectively, depending how the water measurements were made. Also, the measurements made by a driller could not be expected to be as accurate as measurements made by trained hydrologists. Further, if the soils in the vicinity of Well 4177 indicated a depth to water table of 5 feet below land surface, that would not necessarily be inconsistent with the head difference measurements collected by BFA at Test Sites 1, 2 and 3. Depth to Water Table The depth to water table is defined as the difference between the land surface elevation and the head value in the SAS. The water table in the Area IV Wellfield area is consistently close to land surface and often above land surface. The construction of numerous above-grade forest roads and roadside ditches on the property surrounding the Area IV Wellfield has had the effect of impounding surface water and raising the water table near land surface. The Area IV Wellfield and vicinity have a variety of soil types. The predominant wetland soil type is Samsula Muck, which is classified as a very poorly drained soil with a water table either at or above land surface. The predominant upland soil type is Myakka Fine Sand, which is characterized by a water table within a foot of land surface during four months of the year and within 40 inches of land surface during remainder of the year. The average depth to water table at the Area IV Wellfield is approximately 1 foot based on soil types. SAS levels at the three Farmton Mitigation Banks were measured at piezometers installed by Miami Corporation’s consultants from 2001 through 2005. This data confirms the water table at the Area IV Wellfield is consistently close to land surface and frequently above land surface. It indicates the depth to water table is typically less than 3 feet and in many cases within a foot or two. Also, it does not matter whether any of the piezometers were located near wetlands because they show seasonal variation in water levels, where the water table changes from slightly above land surface to below land surface over the course of a year. A water table depth of 6-14 feet below land surface is not realistic at the Area IV Wellfield based on soil conditions and vegetation communities. Such a depth to water would be indicative of a landscape composed primarily of xeric scrub communities with few, if any wetlands. These types of communities do not exist near the Area IV Wellfield. Aquifer Performance Tests The flow of water through an aquifer is determined by three primary hydraulic coefficients or parameters: transmissivity; storage; and leakance. An aquifer performance test (APT) is a pumping test where water is removed from the well at a set rate for a set period of time and drawdown is measured in the well and in neighboring monitor wells to calculate the hydraulic properties of the hydrologic formation. The main hydraulic properties determined through an APT are transmissivity, leakance, and storativity. These properties are used to characterize the water production capabilities of the hydrologic formations. These properties are also used in groundwater modeling to project impacts for longer periods of time and larger distances. Aquifer parameters can be determined from an aquifer performance test using analytical "curve-matching" techniques or a groundwater flow model such as MODFLOW. Curve-matching techniques involve the creation of a curve through measurement of drawdown and the matching of that curve to standard curves derived using analytical equations. Hydraulic conductivity or “K” is the term used to describe the ability of a hydrogeologic unit to conduct fluid flow. It is usually expressed in terms of horizontal hydraulic conductivity or “Kx” and “Ky” and vertical hydraulic conductivity or “Kz.” Transmissivity is the term used to describe the rate of movement of water for a given thickness of a hydrogeologic unit. It is the hydraulic conductivity of an aquifer times its thickness. Storativity is the term used to describe the amount of water that is released from any aquifer for a given unit change in head, or the compressability of the aquifer system. This value can normally be determined during a 4-5 day aquifer performance test. Specific yield is the term used to describe the long- term capacity of an aquifer to store water. This value cannot normally be determined during a 4-5 day aquifer performance test. Leakance is the term used to describe the vertical movement of water from above or below a given unit in response to changes in head or pumpage. APTs are standard practice for evaluating the suitability of a new area for development as a wellfield. Three APTs were conducted at Test Sites 1 and 3. No aquifer performance tests were conducted at Test Site 2. Petitioners question whether the APTs for the Area IV Wellfield were conducted by BFA in accordance with the applicable standard of care in the hydrogeologic profession. The District’s expert, Richard Burklew, believes the three APTs conducted at Test Sites 1 and 3 were adequate for purposes of determining appropriate aquifer parameters. Two APTs were conducted by BFA at Test Site 1. The first test was conducted on January 30-31, 2001, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 44-48 hours, and Wells UF-1S and SA-1 were used as monitor wells. The second test was conducted on April 8-12, 2003, when Well UF-1D was pumped at about 700 gpm or approximately 1 mgd for 96 hours, and Wells UF-1S and SA-1 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day and a storativity of about 0.00036 on the basis of the 2001 APT at Test Site 1. They were unable to calculate a leakance value because the drawdown data did not reasonably fit the curve- matching techniques. For that reason, BFA performed another APT at Test Site 1 in 2003. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,300 ft2/day, a storativity of 0.00045, and a leakance of 0.00029 day-1 on the basis of the 2003 APT at Test Site 1. One APT was conducted by BFA at Test Site 3 on April 10-13, 2001. Well UF-3D was pumped at about 700 gpm or approximately 1 mgd for 70 hours, and Wells UF-3S and SA-3 were used as monitor wells. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 7,450 ft2/day, a storativity of 0.0002, and a leakance of 0.00026 on the basis of the 2001 APT at Test Site 3. However, because of problems with the test, leakance was not considered a good match for the analytical techniques. Leakance values determined by BFA from the APTs conducted at Test Sites 1 and 3 were based on the application of analytical curve-matching techniques. The leakance values determined through the conventional type curve-matching techniques employed by BFA are typically higher than the actual leakance values. They are also inherently limited because they assume the calculated leakance is due entirely to the ICU rather than a combination of the ICU and MCU as is the case at the Area IV Wellfield. The analytical techniques employed by BFA were unable to calculate separate leakance values for the ICU and the MCU. The best way to determine leakance values for each of these confining units was to use a MODFLOW model and observed head difference data. This was done by the City’s consultant, SDI, and is described in greater detail, infra. In January 2004, several APTs were conducted using two SAS wells referred to as Test Sites 4 and 6. These test sites are located more than 3 miles from the Clark property. Constant rate and variable rate APTs were conducted at both sites. During the constant rate tests, 230 gpm or about 0.33 mgd was pumped from the SAS well. Using several analytical curve-matching techniques, BFA calculated a transmissivity of 2,500 ft2/day for the surficial aquifer at those locations. Water Quality Data Consistent with the general understanding of the freshwater groundwater tongue extending from Volusia into Brevard County, the TDEM performed by SDII Global indicated that the depths to the 250 mg/l and 5,000 mg/l chloride concentrations decrease as one proceeds south along the FEC ROW. For example, the depths to the 250 mg/l and 5,000 mg/l chloride concentrations were 442 feet and 542 feet, respectively, at the northernmost test site, which is somewhat north of the City’s Test Site 1. The depth to the 250 mg/l and 5,000 mg/l chloride concentrations were 406 feet and 506 feet, respectively, at the southernmost test site, which is somewhat south of the City’s Test Site 2. Sixteen water quality grab samples were collected every 20-30 feet as the test production well at Test Site 1 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. This type of sampling is referred to as drill-stem testing. The chloride concentrations in the samples collected from 120 feet and 480 feet below land surface were 59 mg/l and 879 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 460 feet below land surface was reached. Six water quality grab samples (drill-stem tests) were collected every 20-30 feet as the test production well at Test Site 2 was drilled, beginning 120 feet below land surface and ending 210 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 210 feet below land surface were 124 mg/l and 845 mg/l, respectively. The chloride concentrations in these samples did not exceed 250 mg/l until a depth of 180 feet below land surface. Fourteen water quality grab samples (drill-stem tests), were collected every 20-30 feet as the test production well at Test Site 3 was drilled, beginning at 120 feet below land surface and ending at 500 feet below land surface. The chloride concentrations in the samples collected from 120 feet and 500 feet below land surface were 45 mg/l and 90 mg/l, respectively. The chloride concentrations in these samples never exceeded 90 mg/l. A packer test is a procedure used to isolate a particular well interval for testing. It is performed using an inflatable packer on the drill stem, which is placed at the interval to be blocked. The packer is inflated with water or air to isolate the interval to be sampled. A packer test can be used to collect water samples for analysis. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 1. At the interval of 331-355 feet below land surface one sample was taken with a chloride concentration of 672 mg/l. At the interval of 331-400 feet below land surface, one sample was taken with a chloride concentration of 882 mg/l. Finally, at the interval of 442-500 feet below land surface two samples were taken with chloride concentrations of 2,366 mg/l and 2,2712 mg/l. Several water quality grab samples were collected in packer tests at specific depth intervals at Test Site 3At the interval of 270-295 feet below land surface, two samples were taken with chloride concentrations of 74 mg/l and 450 mg/l. At the interval of 340-400 feet below land surface, two samples were taken with chloride concentrations of 64 mg/l and 134 mg/l. Finally, at the interval of 445-500 feet below land surface, two samples were taken with chloride concentrations of 1,458 mg/l and 2,010 mg/l. No packer test samples were collected at Test Site 2, where it was clear that water quality was too poor to be used as a fresh groundwater source. The packer test samples collected at Test Sites 1 and 3 were collected using a higher pumping rate than typically recommended by the DEP and the United States Environmental Protection Agency (EPA). Consequently, the chloride concentrations in these samples are probably higher than the chloride concentrations found in the undisturbed groundwater at those depths. Since the packer sits on top of the borehole and restricts flow from above, it generally is reasonable to assume that a packer test draws more water from below than from above the packer. However, if transmissivity is significantly greater just above the packer, it is possible that more water could enter the packer from above. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 1. The chloride concentrations in the first and last grab sample were 59 mg/l and 58 mg/l, respectively. Seven water quality grab samples were collected every 12 hours during the 2001 APT at Test Site 3. The chloride concentrations in the first and last grab samples were 19 mg/l and 52 mg/l, respectively. Nine water quality grab samples were collected every 12 hours during the 2003 aquifer performance test at Test Site The field-measured chloride concentrations in the first and last grab samples were 56 mg/l and 55 mg/l, respectively. The laboratory measured chloride concentrations in the first and last grab samples were 66 mg/l and 74 mg/l, respectively. The average chloride concentration for the water samples collected during the three APTs at Test Sites 1 and 2 was about 50 mg/l. Water is composed of positively charged analytes (cations) and negatively charged analytes (anions). When cations predominate over anions, the water is said to have a positive charge balance; when anions predominate over cations, the water is said to have a negative charge balance. Theoretically, a sample of water taken from the groundwater system should have a charge balance of zero. However, in real life this does not occur because every sample contains some small trace elements that affect its charge balance. Therefore, in the field of hydrogeology, a positive or negative charge balance of 10 percent or less is accepted as a reasonable charge balance error, and this standard has been incorporated in the permit conditions recommended by the District for the City’s permit. With one exception, all the water quality samples collected by BFA from Test Sites 1-3 had an acceptable charge balance. The one exception was a sample collected from the packer interval of 270-295 feet below land surface at Test Site 3 with a chloride concentration of 74 mg/l. This sample has a positive charge balance of 32.30 percent. The sample collected from the packer interval of 270- 295 feet below land surface at Test Site 3 has an overabundance of cations probably caused by grouting and cementing of the packer prior to taking the sample. Since chloride is an anion and not a cation, any error associated with this sample would not effect the validity of the 74 mg/l chloride concentration measured in this sample. This conclusion is also supported by the fact that two samples were collected from the same well at a packer interval of 340-400 feet below land surface with acceptable charge balances and they contained chloride concentrations of 64 mg/l and 134 mg/l. The District’s experts, Richard Burklew and David Toth, believe the 450 mg/l chloride concentration measured in a sample taken from the packer interval of 270-295 feet below land surface at Test Site 3 is a faulty measurement and should be discarded as an outlier. Dr. Toth testified that the sodium to chloride ratio indicates there was a problem with this measurement, which would call into question the reported chloride value. In 2004 and 2005, the City collected SAS water quality samples from Test Sites 4 and 6 and Monitor Wells MW-1 and RW-1 near Test Site 1. The samples were analyzed for all applicable water quality standards, which might preclude use of water from the SAS extraction wells to directly augment wetlands. The analyses found that the SAS water quality near the proposed extraction wells was very similar to the SAS water quality near the Area IV production wells and that water could be applied to the wetlands without any adverse water quality consequences. Area IV UFAS Flow Patterns and Basin Boundaries Although the United States Geologic Survey (USGS) potentiometric surface maps do not show any data points in the vicinity of the proposed Area IV Wellfield, and they are not sufficient by themselves to formulate opinions regarding the future operation or impacts of the proposed wellfield, Petitioners contend that these potentiometric surface maps demonstrate that the freshwater found in the UFAS at the Area IV Wellfield is due to local freshwater recharge only and not freshwater flow from the northwest. They point to a regional report indicating that there is a groundwater basin divide just north of the Area IV Wellfield. This report is based on a 1980 USGS potentiometric surface map. However, another regional report indicates that the groundwater basin divide occurs south of the Area IV Wellfield. This report is likely based on a 1998 USGS potentiometric surface map. Because of the lack of data points in rural northwest Brevard County, the City did not rely on any groundwater basin divide maps, but rather collected site specific information regarding the proposed Area IV Wellfield. The District’s expert and the Petitioners’ own expert (the sponsor of Petitioners' potentiometric surface map exhibits) noted several errors in the flow direction arrows added by Petitioners to the maps. In addition, after reviewing the potentiometric surface maps presented by Petitioners, the District’s expert concluded that, in addition to local freshwater recharge, the predominant flow into the vicinity of the Area IV Wellfield is generally from the northwest and southwest. To confirm his opinion, the District’s expert examined the head difference data collected in July 2006. At well UF-1S, the UFAS observation well at site 1, the elevation in the well was 16.27 NGVD. At site 3, which is southeast of site 1, the elevation in the UFAS observation well was 15.68 NGVD. At site 2, which is southeast of site 3, the elevation in the UFAS well was 13.87 NGVD. Since water generally flows from the highest to lowest head measurements, these measurements indicated that water would have been flowing from the northwest to the southeast in the vicinity of Area IV. However, the potentiometric surface can change both seasonally and yearly; likewise, the basin boundaries may also change. SAS and UFAS Drawdown Predicting drawdown in the SAS and UFAS in the vicinity of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and impacts on wetlands, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable drawdown. Initially, BFA prepared and submitted groundwater flow simulations of the Area IV Wellfield prepared using an analytical model known as the “Multi-Layer/SURFDOWN Model.” Although the District initially accepted the submission as providing reasonable assurance to support the District's initial TSR, Miami Corporation petitioned and criticized the City's model as not actually providing reasonable assurance, both because of its predicted SAS drawdown and because it was an analytical model (which can only represent simple conditions in the environment, assumes homogenous conditions and simple boundary conditions, and provides only a model-wide solution of the governing equation). By comparison, a numerical model allows for complex representation of conditions in the environment, heterogeneous conditions and complex boundary conditions, and cell-by-cell iterative solutions of the governing equation that are typically performed by a computer. Over the past 10 to 15 years, a numerical model called MODFLOW has become the standard in groundwater modeling throughout the United States and much of the world. All of the Florida water management districts utilize MODFLOW or are familiar with it, so it is a model of choice today for groundwater flow modeling. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable drawdown. Miami Corporation's petition was scheduled for a final hearing in June 2005 that was continued until September 2005 after the first revised TSR was issued in May 2005. The final hearing was continued again until February 2006 to allow discovery and hearing preparation by Vergie Clark, who filed her petition in July 2005. As the case proceeded towards a February 2006 final hearing on the pending petitions, the City eventually made what actually was its second attempt to develop a calibrated MODFLOW model of the Area IV Wellfield. Unbeknownst to the District, BFA already had attempted to develop a MODFLOW Model of the Area IV Wellfield in 2004, with the assistance of Waterloo Hydrogeologic, Inc. (WHI) (which later was retained as Petitioners’ consultant in this case in a reverse of the Hartman client switch). When BFA ended its efforts with WHI, their efforts to calibrate a MODFLOW model for Area IV that would predict acceptable drawdown was unsuccessful, and none of those modeling efforts were submitted or disclosed to the District. In the fall of 2005, the City turned to another consultant, SDI, to attempt to develop a calibrated MODFLOW Model of the Area IV Wellfield. SDI initially prepared a so- called MODFLOW model equivalent of the Multi-layer/SURFDOWN Model prepared by BFA. It was presented to District staff at a meeting held in January 2006 for the purpose of demonstrating to District staff that the MODFLOW model equivalent of the Multi- layer/SURFDOWN Model generated results for the Area IV Wellfield that were not very different from the results obtained by BFA using their Multi-layer/SURFDOWN Model. Petitioners criticized several weaknesses in the MODFLOW equivalent model and maintained that the modeling efforts to date did not give reasonable assurance of no unacceptable SAS drawdown. By this time, the District had decided to retain Dr. Peter Huyakorn, a renowned modeling expert. Based on his recommendations, the District required the City to produce a calibrated MODFLOW model of Area IV (as well as numerical solute transport modeling, which will be discussed below). The scheduled final hearing was continued until September 2006 to allow time for this work to be completed, discovered, and evaluated. After the continuance, the City had SDI prepare a calibrated MODFLOW model to predict the drawdown that would result from operation of Area IV. SDI produced such a model in March 2006. This model predicted less drawdown. Specifically, a steady-state simulation of a 2.75 mgd withdrawal from the proposed 15 UFAS production wells and a 0.18 mgd withdrawal from the four proposed SAS extraction/wetland augmentation wells predicted the maximum drawdown of the surficial aquifer to be less than 0.5 foot (which, as discussed infra, would be acceptable). (UFAS drawdown, which is not an issue, was predicted to be an acceptable 12 feet.) But Petitioners questioned the validity of the model for several reasons, including its suspect calibration. Dr. Huyakorn also had questions concerning the calibration of SDI's March 2006 MODFLOW model, but subsequent work by SDI satisfied Dr. Huyakorn and the District, which issued the TSR and proposed CUP at issue in May 2006 based in part on SDI's March 2006 MODFLOW model, despite Petitioners' criticisms. The final hearing was continued until September 2006 to give Petitioners time to complete discovery on SDI's March 2006 MODFLOW model (as well as the City's new solute transport modeling, which is discussed, infra). To calibrate its March 2006 MODLFOW, SDI first used a transient MODFLOW model to simulate data from the 4-day aquifer performance test (APT) from the Area IV Wellfield sites (the transient APT calibration). (A transient model is used to analyze time-dependent variable conditions and produces a time- series of simulated conditions.) Then, after calibrating to the APT data, SDI used a steady-state, non-pumping MODFLOW model (a time-independent model used to analyze long-term conditions by producing one set of simulated conditions) to simulate the static head difference between the SAS and UFAS (the steady- state head difference calibration). If the head difference simulated in the steady-state calibration run did not match the measured head difference, the ICU leakance was adjusted, and then the revised parameters were rechecked in another transient APT calibration run. Then, another steady-state head difference calibration run was performed in an iterative process until the best match occurred for both calibration models. In order to achieve calibration, SDI was required to make the ICU leakance value several times tighter than the starting value, which was the value derived in the site-specific APT using conventional curve-matching techniques (and relatively close to the values ascribed to the region in general in the literature and in two regional models that included Area IV near the boundary of their model domains--namely, the District's East Central Florida (ECF) model, which focused on the Orlando area to the south and west, and its Volusia model, which focused on Volusia County to the north). SDI's calibrated ICU leakance value derived from calibration to observed static head differences is more reliable than an ICU leakance value derived from an APT using conventional curve-matching techniques. That leaves a question as to the quality of the static head difference measurements used for SDI's calibration. BFA took static head measurements at SAS and UFAS monitor wells located at Test Sites 1, 2 and 3 in January 2004, April 2004, and July 2006. On each occasion, a downward head gradient was noted at each site, meaning the water table (i.e., the SAS) had a higher elevation than the potentiometric surface of the UFAS. In January 2004, the measured head difference at Test Sites 1, 2 and 3 were 6.2 feet, 5.5 feet and 5.9 feet, respectively. In April 2004, the measured head differences at Test Sites 1 and 3 were 8.1 feet and 8.1 feet, respectively. In July 2006, the measured head differences at Test Sites 1, 2 and 3 were 8.6 feet, 6.6 feet and 9.3 feet, respectively. The average of these observed head differences for the Area IV Wellfield was 7.46 feet. BFA's static head difference measurements included both wet and dry seasons. The measurements do not show significant differences between seasons and suggest that static head difference remains fairly constant at the Area IV Wellfield year round. This is typical of head difference data collected from hundreds of other Florida locations because the hydrologic systems seek equilibrium. Petitioners questioned taking an average of the head difference measurements because the region had experienced a rainfall deficit of 17 inches over the 12 months prior to time the measurements in July 2006 were taken. By itself, a rainfall deficit would not affect head difference measurements because the hydrologic system would seek equilibrium. But there was evidence of a possibly significant rainfall near Area IV not long before the July 2006 measurements. If significant rain fell on Area IV, it could have increased the static head differences to some extent. But there was no evidence that such an effect was felt by Area IV. Petitioners also contend for several other reasons that the static head differences used by SDI as a calibration target were "not what they are cracked up to be." They contend that "limited spatial and temporal extent . . . renders them inappropriate calibration targets." But while the site-specific static head difference measurements were limited, and more measurements at different times would have increased the reliability of the average static head difference used in SDI's steady-state calibration, the head difference measurements used were adequate. For a groundwater model of Area IV, they were as good as or better than the head differences used by Petitioners' expert modeler, Mr. LaFrenz of Tetratech, who relied on SAS and UFAS head levels from the regional-scale ECF model, which were measured by the United States Geological Survey (USGS) in May and September 1995. Petitioners also contended that the measured head differences used by SDI for the steady-state calibration of the March 2006 MODFLOW model were significantly higher than other measured head differences in the general vicinity of Area IV. One such location is Long Lake, which has saltwater and an obviously upward gradient (i.e., a negative head difference between the SAS and UFAS), whereas SDI's MODFLOW depicts it as having a five-foot downward gradient (positive head difference). However, all but one of those measurements (including from Long Lake) were from locations five or more miles from Area IV. In addition, the accuracy of the measurements from the closer location (and all but one of the more distant locations) was not clear, so that the seemingly inconsistent head differences measurements may not be indicative of actual inconsistency with the head difference measurements used by SDI. Petitioners also accused the City and its consultants of "playing games with specific yield" to achieve calibration with a tighter-than-appropriate ICU leakance value. But the City and the District adequately explained that there was no merit to the accusations. It was appropriate for SDI to use just the relatively small specific storage component of SAS storativity (the 0.001 value) in its transient calibration runs, instead of the larger specific or delayed yield component. Storativity is not utilized at all in the MODLFOW steady-state calibration runs and steady-state simulations. Based on the foregoing, it is found that Petitioners' factual disputes regarding SDI's calibrated ICU leakance value do not make the City's assurance of no unacceptable drawdown provided by its MODFLOW simulations unreasonable. That leaves several other issues raised by Petitioner with regard to the SDI's March 2006 MODFLOW model. In calibrating its MODFLOW model, SDI utilized a value for the MCU leakance that was twice as leaky as the published literature values for the area, which Petitioners claim would reduce simulated SAS drawdown. Although the use of a higher MCU leakance value in the model may result in a prediction of less SAS drawdown, the actual effect, if any, on the predicted drawdown, was not made clear from the evidence. In any event, an MCU leakance value for Area IV calibrated to site-specific data is more reliable than regional values. Petitioners also accused the City and its consultants of using inappropriate or questionable boundary conditions, topography, and depth to the water table. They also contend that incorrect topography--namely, a nonexistent five-foot ridge or mound northwest of Area IV--provides an artificial source of water for SDI's March 2006 MODFLOW model. But the boundary conditions for SDI's March 2006 MODFLOW model were clear from the evidence and were appropriate; and SDI's topography and water table depth were reasonably accurate (and on a local scale, were as or more accurate than the USGS topographic maps Petitioners were comparing). Besides, Dr. Huyakorn ran the Tetratech model with SDI's leakance value instead of Tetratech's value and got virtually the same drawdown results, proving that differences in topography between the two models made virtually no difference to the drawdown predictions of either model. As for the so-called "flow from nowhere," particle-tracking simulations conducted by experts from both sides established that, with pumping at 2.75 mgd, no water would enter the Area IV production zone from anywhere near the five-foot ridge area for at least 100 years. This gave reasonable assurance that the five-foot ridge or mound had no effect on the simulated results from SDI's March 2006 MODFLOW model. Petitioners also contend that the City's failure to simulate drawdown from pumping during the dry season, as opposed to a long-term average of wet and dry seasons, constituted a failure "to provide reasonable assurances as to the conditions that can be expected as a result of the anticipated operation of the wellfields." But the evidence was clear that long-term, steady-state groundwater model simulations are appropriate and adequate to provide reasonable assurance for CUP permitting purposes. See "Drawdown Impacts," infra. By definition, they do not simulate transient conditions such as dry season pumping. The SDI model predicts a maximum drawdown, from a 2.75 mgd withdrawal from all fifteen UFAS production wells and a 0.18 mgd withdrawal from the four SAS extraction wells, of slightly less than 0.5 feet in the SAS and of 12.0 feet in the UFAS in the immediate vicinity of the Area IV Wellfield. SDI’s model predicts a drawdown of 0.11 feet (approximately 1 inch) in the SAS and a drawdown of 2.2 feet in the UFAS at Ms. Clark’s property, which is located approximately 1 to 1.5 miles north of the Area IV Wellfield. It is found that SDI's March 2006 MODFLOW model for Area IV is the best such model in evidence. That is not to say that the drawdown predicted by SDI's model is a certainty. The other models were not proven to be better than SDI's, but they did demonstrate that simulated results would vary significantly in some cases if SDI's calibration and calibrated ICU leakance values were incorrect. Having more good hydrologic information would have made it possible to reduce the uncertainties present in SDI's model, but it is found that SDI's March 2006 MODFLOW model was sufficient to give reasonable assurance as to SAS and UFAS drawdown from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation. Drawdown Impacts As indicated, once drawdown is predicted with reasonable assurance, both interference with existing legal uses and impacts on wetlands, which relate to public interest, must be evaluated. Interference with Legal Uses Using SDI's March 2006 MODFLOW model, the City gave reasonable assurance that the drawdown predicted from pumping at 2.75 mgd from the UFAS and 0.18 mgd from the SAS for wetland augmentation will not interfere with existing legal users. The nearest existing legal users are located about one mile northwest and two miles east/southeast of the nearest proposed production well. The City’s MODFLOW modeling scenarios indicate that maximum drawdown in the SAS will be less than 0.5 feet and minimal (at most 2.2 feet) in the UFAS at the nearest active existing legal users. Obviously, drawdown would be much less at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). As indicated, the drawdown predicted by SDI's March 2006 MODFLOW model is not a certainty. Although not likely based on the more persuasive evidence, if actual drawdown approximates the drawdown predicted by the Tetratech model, there could be interference with existing legal users. (The Tetratech model predicts that the long-term average reduction in the water table of approximately 1.6 feet of drawdown near the center of the wellfield and drawdown of 0.4 feet to 0.5 feet extending out more than a mile from the proposed Area IV Wellfield.) There probably still would be no interference with existing legal users with pumping at 0.5 to 0.75 mgd from the UFAS (with probably no wetland augmentation required). In the event of that much actual drawdown and unanticipated interference from the City’s pumping, “Other Condition” 15 of the proposed permit requires that it be remedied. See Finding 36, supra. There is no reason to think such interference could not be remedied. Environmental Impacts from Drawdown Miami Corporation’s property in the vicinity of the proposed Area IV Wellfield is a mosaic of pine flatwoods uplands interspersed with wetlands. The wetlands are mostly cypress swamps, with some areas of hardwood swamp, marshes, and wet prairies. Miami Corporation's property is managed for timber and is also used for cattle grazing and hunting. Miami Corporation has constructed a network of roads and ditches on its property, but overall the wetlands are in good conditions. The areas east and west of the proposed Area IV Wellfield consist of cypress strands, which are connected wetlands. Compared to isolated wetland systems, connected wetlands are typically larger, deeper, and connected to waters of the state. They tend to have hardwood wetland species. Connected wetlands are less vulnerable to water level changes brought about by groundwater withdrawals because they tend to be larger systems and have a greater volume of water associated with them. They are able to withstand greater fluctuations in hydroperiods than isolated herbaceous wetland systems. Isolated wetland systems are landlocked systems. They tend to be smaller in size and shallower than connected wetland systems. Isolated systems tend to be more susceptible to changes in hydrology than larger connected systems. The upland plant communities present near the proposed Area IV Wellfield include pine flatwoods that have been altered by Miami Corporation's timber operations. There is a large area surrounding the Area IV Wellfield to the north that consists of forest regeneration after timbering. There was evidence of the presence of the following listed animal species at the site of the proposed Area IV Wellfield: wood storks, roseate spoonbills, ibis, bald eagles, Sherman fox squirrels, American alligator, sandhill cranes, wood storks, black bear, and indications of gopher tortoises. The habitat in the vicinity also supports a number of other listed species that were not observed. The following listed plants species were also observed during the environmental assessment and site visits: hooded pitcher plants, water sundew, pawpaw and yellow butterwort. Ms. Clark’s property adjoins a cut-over cypress swamp on the western side of her property, and there is also a small man-made fish pond in her backyard. Some clearing has taken place in the wetland system on the back portion of Ms. Clark’s property. What appears to be a fire break on Ms. Clark’s property encroaches upon the wetland system. The wetlands on Ms. Clark’s property have experienced some human activities such as trash dumping and clearing, which have resulted in a degradation of those systems. Some trees within the wetland systems on the back portion of Ms. Clark’s property have been logged. For the most part, the hydrology appears to be normal. However, some invasive species have encroached upon the system due to the clearing that has taken place. There was no evidence of listed plant or animal species present on Ms. Clark’s property. If drawdown is of the magnitude predicted by the SDI's March 2006 MODFLOW model, unacceptable environmental impacts from drawdown would not be anticipated. At 0.5 or 0.75 mgd, there clearly would not be any unacceptable environmental impacts. In addition, “Other Condition” 12 of the proposed permit requires the City to perform extensive environmental monitoring. The environmental monitoring plan proposed for the Area IV Wellfield provides reasonable assurance that changes to wetland hydrology and vegetation due to groundwater withdrawals will be detected before they become significant. “Other Condition” 12 of the proposed permit prohibits the City from pumping any water from the production wells until the monitoring network is in place. The baseline monitoring will give a clear indication of the existing conditions prior to the production wells coming on-line. Once the production wells are online, the City will continue the same procedures that they conducted prior to the production wells coming online. This will allow the City and the District to monitor the effects of pumping. The City’s proposed environmental monitoring plan is adequate to detect drawdown impacts and is consistent with environmental monitoring plans that have been developed for other wellfields throughout the State of Florida. Since the City has given reasonable assurance that there will not be environmental harm from drawdown, the proposed permit does not propose mitigation. If unanticipated harm is detected, “Other Condition” 24 of the proposed permit requires the City to implement an avoidance and minimization plan to rehydrate the wetlands and restore the water levels to normal levels and natural hydroperiods by augmenting the water in the affected wetlands with water pumped from SAS wells and piped to the affected wetlands. “Other Condition” 24 includes specific timeframes for implementing wetland rehydration in the event unanticipated impacts were to occur. In addition, the City could, on its own, change its pumping schedules. If an impacted wetland is near a particular well, the City could reduce or shut off water withdrawals from that well and thereby restore water levels in the wetland. Direct augmentation of wetlands has been used at other facilities such as those of Tampa Bay Water and Fort Orange. The direct augmentation at these other sites appears to be effective. Direct augmentation of wetlands has proven to be a feasible means of offsetting adverse changes in wetlands due to groundwater withdrawals, at least in some circumstances. There is a viable source of water that can be utilized to augment these wetland systems, namely a large canal south of the production wells. Based on the predicted drawdown, SDI estimated the quantity of water needed for implementation of the avoidance and minimization plan to be 0.18 mgd. The water quality in the canal is comparable to the water quality within any wetland systems that would be affected by drawdown. The City plans to have its augmentation plan in place prior to the production wells coming online. In that way, if changes are observed within the wetland systems, the augmentation plan could be implemented in relatively short order to alleviate any impacts that might be occurring as a result of the production wells. The success of the augmentation plan depends on the extent of actual drawdown. If actual drawdown approximates Tetratech's predictions, environmental impacts would not be acceptable, and there would not be reasonable assurance that the augmentation plan would be sufficient to mitigate the environmental impacts. If drawdown is of the magnitude simulated in the City’s MODFLOW model, reasonable assurance was given that, if needed, the avoidance and minimization plan developed for the Area IV Wellfield would be capable of offsetting any adverse changes in wetlands and other waters detected through the environmental monitoring plan. If the City pumps not more than 0.75 mgd, the avoidance and minimization plan developed for the Area IV Wellfield probably would be unnecessary but certainly would be capable of offsetting any adverse changes in wetlands and other waters that would be detected through the environmental monitoring plan. If unanticipated environmental harm occurs due to excessive actual drawdowns, and the harm cannot be avoided either by the augmentation plan or by altering the pumping schedule, or both, the District can revoke all or part of the permit allocation under “Other Condition” 23. This ability gives reasonable assurance that no unacceptable environmental harm will occur even if actual drawdown approximates Tetratech's predictions. Saltwater Up-coning and Intrusion Predicting saltwater movement towards the production zone of the proposed Area IV Wellfield is important to several permitting criteria, including interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, both of which relate to the public interest. During the permit application review process, the City submitted a succession of models to provide reasonable assurance that the proposed Area IV Wellfield would not result in unacceptable saltwater intrusion. Initially, BFA prepared and submitted solute transport simulations using an analytical model known as the “UPCONE Model.” The District initially accepted the submission as providing reasonable assurance to support the District's initial TSR. Despite Miami Corporation's petition, the City and the District maintained that reasonable assurance had been given that operation of Area IV would not result in unacceptable saltwater intrusion based on the "UPCONE Model." As indicated, supra, Miami Corporation's petition was scheduled for a final hearing in June 2005, but the hearing was continued until February 2006. As the case proceeded towards a final hearing in February 2006, the City not only turned to SDI to develop the numerical MODFLOW model, it also turned to SDI to develop a numerical solute transport model that would couple the MODFLOW groundwater flow equations with advection dispersion solute transport equations to simulate the movement of variable density saline groundwater in response to stresses. In addition to the initial boundary conditions, aquifer parameters and stresses specified for a groundwater model, a solute transport model requires solute parameters such as chloride concentrations, dispersivity and effective porosity. SEAWAT is a solute transport model code that combines the MODFLOW, which provides the groundwater flow component, with the MT3DMS code, which provides the mass transport component. When coupled with MODFLOW, the MT3DMS code tracks the movement of variable density water and performs internal adjustments to heads in the flow model to account for water density. Like MODFLOW, SEAWAT is capable of simulating the important aspects of the groundwater flow system, including evapotranpiration, recharge, pumping and groundwater flow. It also can be used to perform both steady-state or transient simulations of density- dependent flow and transport in a saturated zone. It was developed in the late 1990s and is rapidly becoming the standard for solute transport modeling throughout the United States. It is used by many water management agencies in the State of Florida. Initially, SDI used SEAWAT version 2.1 to simulate movement of saline water towards the Area IV Wellfield. The first such simulation was prepared in March 2006 using manually- adjusted head values along the eastern model boundary. It incorporated SDI's March 2006 MODFLOW model. The District, in consultation with Dr. Huyakorn, required SDI to perform what was termed a "sensitivity run" with reduced chloride concentrations in the eastern boundaries (5,000 mg/l versus 19,000 mg/l) to better match actual measurements recorded in wells in the vicinity. In April 2006 SDI prepared and submitted those simulations. After reviewing the March and April 2006 SEAWAT 2.1 simulations, Petitioners' consultants criticized the manner in which starting chloride concentrations in the vicinity of the Area IV Wellfield were input into the models. In those models, SDI had input initial chloride concentration at 50 mg/l throughout the depth of the UFAS. The model was then run for 100 years with no pumping to supposedly arrive at a reasonable starting chloride concentration for the UFAS. Then, the model was run for 25 years with pumping at 2.75 mgd. However, the initial chloride concentrations at the beginning of the pumping run still did not comport well with actual measurements that were available. After Petitioners raised the issue of the starting chloride concentrations assigned to the UFAS in SDI's March and April 2006 SEAWAT 2.1 runs, the final hearing was continued until September 2006 to give Petitioners time to complete discovery on those models (as well as on SDI's March 2006 MODFLOW model, as discussed supra). During a deposition of Dr. Huyakorn in July 2006, he recommended that the District require SDI to perform another simulation (also termed a "sensitivity run") using starting chloride concentrations more closely comporting with known measurements. (There also were some changes in the constant chloride concentrations that were part of the boundary conditions on the western side of the model domain.) This resulted in SDI's early August 2006 SEAWAT 2.1 simulation of 15 years of pumping at 2.75 mgd. Petitioners also criticized the City for not using a newer version of SEAWAT, called SEAWAT 2000, as well as for using chloride concentrations as inputs for its SEAWAT 2.1 model simulations instead of total dissolved solids (TDS). (SEAWAT 2.1 required input of TDS, not chlorides; SEAWAT 2000 allowed chlorides to be input. Not until the last day of the final hearing was it pointed out by Dr. Huyakorn that using chlorides instead of TDS caused SDI's SEAWAT 2.1 simulations to over- predict saltwater intrusion.) As a result of Petitioners' criticisms, the City had SDI re-run both the April and early August SEAWAT 2.1 models in late August 2006 using SEAWAT 2000 (which the City and the District also termed "sensitivity runs.") Because the SEAWAT 2000 simulations would be time- barred from use in the City's case-in-chief under pre-hearing requirements, and whether they could be used in rebuttal could not be determined at that point in time, the City requested another continuance, this time until December 2006, to give Petitioners time to discover the SEAWAT 2000 model simulations. During Petitioners' discovery of SDI's August SEAWAT 2000 model simulations, it came to SDI's attention that SDI was not calculating mass outputs from the model correctly. Those errors were corrected by SDI in September 2006. SDI's corrected August 2006 SEAWAT 2000 simulation predicted that, after 15 years of pumping at 2.75 mgd, the chloride concentration in the Area IV production wells would increase from 54 mg/l to 227 mg/l. After the 15-year pumping run, SDI's corrected August 2006 SEAWAT 2000 simulation predicted that the chloride concentration in several of the southernmost production wells would exceed 250 mg/l. At 17.5 years of the pumping run simulation, the simulation predicted that the entire wellfield would have chlorides in excess of 250 mg/l. That prediction does not, however, mean the chloride concentration in these wells will exceed 250 mg/l in actual operation. The SDI model contains several conservative assumptions that magnified the potential chloride concentrations in those wells. First, it was assumed all the production wells would be drilled to 250 feet below land surface, while the City will likely drill the southernmost wells to a shallower depth. Additionally, the wellfield production rate used in the model was not optimized for water quality. Finally, the model was not set up to simulate a wellfield operation plan that turned wells on and off based on the saline water monitoring plan. For the sake of simplicity, the model assumed that all the wells would operate 24 hours a day, 7 days a week, for the entire 15 year period. Petitioners continued to maintain for several reasons that SDI's SEAWAT models do not provide reasonable assurance that operation of the Area IV Wellfield will not result in unacceptable saltwater intrusion. Chlorides versus TDS Petitioners criticized SDI's corrected SEAWAT 2000 model for still not inputting chlorides correctly. While SEAWAT 2000 allows the input of chlorides instead of TDS (and input of chlorides instead of TDS is recommended since chloride is a more stable chemical than some of the other components of TDS), they must be input correctly. However, while Petitioners demonstrated that the chlorides were not input correctly, causing the model to under-calculate fluid density, Dr. Huyakorn clarified in rebuttal that under-calculating fluid density caused SDI's SEAWAT 2000 models to over-predict saltwater intrusion into the wellfield. Starting Chloride Conditions Petitioners continued to question the representation of initial chloride concentrations in the SEAWAT models. SDI's SEAWAT models included multiple vertical grid layers to represent conditions better than the layering used in the MODFLOW set-up. The SAS was represented by layer 1, the ICU by layer 2, the UFAS by layers 3 through 14, the MCU by layer 15, and the LFAS by layers 16 and 17. SDI used a chloride concentration of 0 mg/l for the SAS and ICU in its August 2006 SEAWAT model, which probably does not represent the actual initial condition but is probably close enough since the SAS is recharged by rainfall that typically has very low (1 to 2 mg/l) chloride levels. SDI used a chloride concentration of 2,500 mg/l for the MCU and a chloride concentration of 5,000 mg/l for the LFAS in its August 2006 SEAWAT model, which are reasonable initial chloride values for the Area IV Wellfield. To develop the initial chloride concentration conditions of the UFAS for its August 2006 SEAWAT model, SDI first plotted the available water quality data (63 well-data points) on a map of the Area IV Wellfield area. After examining the distribution of the data, SDI divided the UFAS into two layers to represent the upper UFAS (above –200 feet NGVD) and the lower UFAS (below –200 feet NGVD). Then, using various scientific studies containing chloride concentration maps, groundwater recharge/discharge maps (recharge indicating an area is more likely to have low chlorides in the UFAS and discharge indicating an area is more likely to have high chlorides), and maps showing the shape and extent of the freshwater lens in the area, plus SDI’s own knowledge of groundwater flows and expected higher chloride concentrations along the coast and St. Johns River, SDI used scientifically accepted hand-contouring techniques to represent the initial chloride concentration conditions of the upper and lower UFAS on maps. SDI’s two hand- contoured chloride concentration maps were reviewed and accepted by the District’s experts and reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield. Using the two hand- contoured chloride concentration maps, SDI input the chloride concentration values from those maps into its August 2006 SEAWAT model. The chloride concentration values from the upper UFAS map were input into layers 3 through 7 of SDI’s August 2006 SEAWAT model. The chloride concentration values from the lower UFAS map were input into layers 11 through 14 of SDI’s August 2006 SEAWAT model. SDI input the average of the chloride concentration values from the upper and lower UFAS layers into the middle UFAS (layers 8 through 10). It is appropriate to average the chloride values between the upper and lower UFAS in the Area IV Wellfield because the saline water interface is not that sharp and occurs near the bottom of the UFAS (unlike conditions 11 miles to the south). Petitioners accuse SDI, the City, and the District of ignoring unfavorable chloride data in setting up its August 2006 SEAWAT 2000 model. The evidence was that all chloride data was considered and evaluated. Mr. Davis and the District's experts did not rely on the 450 mg/l chloride packer test measurement taken from the interval between 270 and 295 feet at Test Site 3 in preparing the contour maps of the UFAS because the chloride measurement was deemed inaccurate because the sodium to chloride ratio is out of balance. Mr. Davis and the District's experts did not utilize the 2,336 mg/l and 2,717 mg/l chloride concentration packer test measurements at 442-500 feet below land surface at Test Sites 1 and 3 to prepare the chloride contour maps for the UFAS because they believed these measurements from the MCU. Mr. Davis and the District's experts deemed it inappropriate to utilize a 845 mg/l chloride value reported for Test Site 2 to prepare the chloride contour for the lower portion of the UFAS because this sample was collected at just 210 feet below land surface and because a 500 mg/l contour line separates a 882 mg/l measurement at Test Site 1 from a 134 mg/l measurement at Test Site 3. The decision not to include the Test Site 2 data also is supported by the particle tracking modeling prepared by the Petitioners and the City using the groundwater component of the SDI SEAWAT model and the TetraTech model, which show that water from Test Site 2 will not enter the Area IV production wells for at least 100 years with pumping at 2.75 mgd. The chloride contour maps developed by Mr. Davis and the District experts were consistent with previous studies conducted by the USGS and the District in the region. For example, the chloride contours shown on City Exhibit 142 for the upper portion of the UFAS are generally consistent with Figure 35 of the 1990 USGS Report by Charles Tibbals and Figure 15 of the 1999 District Report by Toth and Boniol. The two chloride contour maps developed by Mr. Davis and the District's experts are a reasonable representation of the existing water quality of the UFAS in the region of the Area IV Wellfield based on the available data. Mr. Davis used the 882 mg/l chloride concentration packer test measurement from the interval between 331 and 400 feet at Test Site 1 as the starting chloride concentration in four grid cells at the bottom of the UFAS, which Petitioners' experts referred to as a "pinnacle" or "column," that were assigned a chloride value of 700 mg/l. While the representation may not have been realistic, and the "pinnacle" or "column" quickly "collapses" when the model begins to run, the representation was a concession to the existence of the datum even though it appeared at odds with water quality collected from a packer test at Test Site 3 at the same depth interval, which was much fresher. District staff agreed with Davis’ approach to representing the saltier packer test measurement from Test Site 1. The initial chloride concentrations developed for the UFAS by Mr. Davis and District staff are not inconsistent with the water quality data collected by the Petitioners’ consultants from Long Lake. The lake is located in an area of the map where the chloride concentration in the UFAS, which discharges into the lake at that location, is between 1,000 and 5,000 mg/l. Mr. Davis decided not to use 2,000 mg/l to represent the bottom layer of the UFAS even though the bottom packer tests performed at Test Sites 1 and 3 showed an average value of 2,000 mg/l at the approximate boundary of the UFAS and the MCU. Instead, he decided to associate this chloride concentration with the MCU because even if the packer had penetrated a portion of the UFAS, he did not believe the measurement was representative of static water quality conditions at that depth. The packers had been pumped for over 4 hours at 25 gpm at Test Site 1 and over 4 hours at 85 gpm at Test Site 3, which could have doubled or tripled the static chloride concentration. As was later shown in sensitivity runs by Petitioners' expert, Dr. Guo, if SDI had incorporated the 2,000 mg/l value at the bottom of the UFAS, the model simulation would have shown unrealistically high initial chloride concentrations in the production wells at the start of pumpage when compared to the water quality measured during the APTs conducted at Test Sites 1 and 3. (While only one well was pumping at a time, versus the 15 in the model simulations, the single APT well was pumping at approximately three times the rate of the 15 wells in the model simulation.) Based on all the evidence, it is found that the chloride concentrations used in SDI’s August 2006 SEAWAT model reflect a reasonable representation of the initial chloride concentration conditions in the UFAS in the Area IV Wellfield and were properly input into that model using an appropriate method. Location of the MCU Related to the last point is Petitioners' claim that the top of the MCU (i.e., bottom of the UFAS) is incorrectly represented in SDI's SEAWAT models at 450 feet below sea level (approximately 425 feet below land surface). They point to literature values indicating that the depth to the MCU is up to 150 feet greater. However, these reports did not include site- specific data or test wells in the vicinity of the Area IV Wellfield or in northern Brevard County. It was reasonable to consider and rely on site-specific information regarding the depth to the MCU in this case. BFA determined the approximate location of the MCU by examining cuttings collected during drilling at APT well sites 1 and 3 and by measuring various properties of the aquifer with down-hole geophysical techniques. Based on the site-specific information obtained, the depth to the MCU was determined to be approximately 450 to 475 feet below land surface or –425 to -450 feet NGVD. The lithologic log for well site 1 indicates the presence of gray/tan limestone between 450 to 460 feet below land surface and light/gray limestone and dolomitic limestone from 460 to 470 below land surface. The lithologic log for well site 3 indicates the presence of tan dolomitic limestone from 450 to 460 feet below land surface and tan limestone and dolomitic limestone from 460 to 470 feet below land surface. According to Petitioners' own expert, Dr. Missimer, the change to a mixture of limestone and dolomite is evidence of the MCU. After examining the video log for well site 1, Dr. Missimer noted a “lithologic change” at 477 feet below land surface (while still disputing BFA's conclusion that the MCU started there.) One characteristic of the MCU is a lower resistivity. At well site 1, a reduction in resistance occurred at approximately 470 feet below land surface. Another characteristic of penetrating the MCU is decrease in flow. The flow meter log for well site 1 suggests a decrease in flow at approximately 450 feet below land surface. On the other hand, it also is true that wells drilled completely into the MCU probably would not produce more than approximately 5 gallons per minute (gpm), whereas the packer test at the bottom of Wellsite 1 was yielding 25 gpm, and the packer test at the bottom of Wellsite 3 was producing 85 gpm. It is possible that the bottom packers were open to both the UFAS and the MCU, which could explain the higher flows. Petitioners maintain that BFA stopped drilling too soon (500 feet below land surface, or 475 feet below sea level) to ascertain the actual depth to the MCU. While it is true that drilling deeper would have made BFA's determination as to the depth to the MCU more convincing and certain, BFA's approximation of the depth to the MCU was reasonable for purposes of SDI's SEAWAT model. To the extent that BFA might have been wrong on the depth to the MCU, there was no convincing evidence that the error would have made SDI's SEAWAT model results unreliable. To the contrary, Dr. Huyakorn testified that, even if SDI put the MCU 75 feet too high, the label given to the interval is not critical to the reliability of the modeling results. More important are the parameters for transmissivity and leakance assigned to aquifers and confining units. Dr. Huyakorn testified that, given the aquifer parameters assigned to the intervals, SDI's SEAWAT modeling results would be reasonably reliable. Saline Movement Impacts As indicated, once chloride concentration changes are predicted with reasonable assurance, both interference with existing legal uses and the ability of the resource to provide the requested allocation of freshwater, which relate to public interest, must be evaluated. Significant saline water intrusion is defined as saline water encroachment which detrimentally affects the applicant or other existing legal users of water, or is otherwise detrimental to the public. (Rule 9.4.2, A.H.). Saline water may encroach from upconing or the vertical movement of saline water into a pumping well, and it may encroach laterally to the well from a saline waterbody like the ocean. The proposed use associated with the four surficial aquifer extraction wells is so minimal that it clearly would not cause saline water intrusion or harm the quality of this proposed source of water. The focus of attention is the production wells. The evidence was sufficient to provide reasonable assurance that the proposed consumptive use from the Area IV Wellfield will not cause significant saline water intrusion; further aggravate currently existing saline water intrusion problems; induce significant saline water intrusion to such an extent as to be inconsistent with the public interest; or harm the quality of the proposed source of water. First, the long-term constant rate pump tests, which were conducted as part of the APT, give some indication of the potential for saltwater intrusion. While only one well was pumping during the tests, water quality did not degrade at pumping rates that far exceeded what would be approved as part of the proposed permit. During four-day pump tests in which the wells at sites 1 and 3 were pumped at approximately 1 mgd, chlorides never exceeded approximately 74 mg/l. Second, while (as with drawdown predicted by the groundwater flow modeling) saltwater movement predicted by the City’s SEAWAT simulations is not a certainty, the simulations gave reasonable assurance that the requested allocation could be withdrawn from the Area IV Wellfield without excessive changes to water quality (specifically chlorides) and that there is an adequate thickness of freshwater at the Area IV Wellfield that could supply the requested allocations of water for 15 years without saline water intrusion, especially since it is unlikely that a number of the wells will actually be constructed to the 250-foot depth assumed in the model, particularly as one moves south along the railroad right-of way. Third, it is even more unlikely that saltwater intrusion will occur before the proposed permit expiration in 2010. Due to the time required to construct the facility, it is anticipated that the Area IV Wellfield will become operational in 2009. Assuming the City seeks to renew the permit, there would be more information on saltwater intrusion for the District to consider on permit renewal. Since the City provided reasonable assurance as to its proposed withdrawals from Area IV, there clearly is reasonable assurance that withdrawal of not more than 0.75 mgd from Area IV would not result in significant saline intrusion. The TSR includes proposed “Other Condition” 11 which requires the installation of saline monitor wells. The spatial distribution of these wells is such that the beginning of water quality degradation or saltwater intrusion, either from upconing or lateral intrusion, would not occur without it being detected by these wells. In addition to these monitor wells, proposed “Other Condition” 14 requires water quality samples to be collected from each production well. These wells are to be sampled quarterly for a suite of parameters, including chlorides. “Other Condition” 25 is proposed as a “safety net” should unanticipated saltwater intrusion occur. If any production well shows a concentration of 250 mg/l chlorides, then this proposed condition would prohibit further use of the well until the chloride concentration drops. If the monitoring shows a chloride concentration in a production well of 200-to- 249 mg/l, the well will be placed on restricted use. A production well may be placed back into regular service once the chloride concentration in the well is below 200 mg/l. Other Issues Other issues raised and maintained by Petitioners in this case include: whether the City has provided reasonable assurance that it owns or controls the property upon which the proposed wellfield will be located; whether the Area IV Wellfield is an economically feasible option; whether the City has provided reasonable assurance that it will be able to implement the project before the expiration date of the proposed permit; whether the proposed CUP is inconsistent with the District's designation of Priority Water Resource Caution Areas; whether the proposed CUP constitutes an impermissible modification of the existing CUPs for Areas II and III; and whether the City failed to pay the appropriate permit fee. Ownership or Control The City has obtained an easement from the Florida East Coast Railway (FEC) to use FEC right-of-way for the City's proposed production wells. It does not yet have ownership or control of land needed for all wetland and saline monitoring sites, or for wetland augmentation if necessary, but intends to acquire the right to use all land needed through negotiation or exercise of eminent domain. Petitioners contend that the FEC easement is insufficient for several reasons: the easement is "without warranty or covenants of title of any kind"; it is impossible to define the precise boundaries of the easement because the easement is defined in terms of distance from the center of a railroad bed that existed in 1866 but no longer exists; and the precise location of proposed production wells is not definite. While the easement is "without warranty or covenants of title of any kind," the evidence is that, if contested, the precise boundaries of the easement would be difficult but not necessarily impossible to define. It is reasonable to anticipate that at least Miami Corporation will contest the legality and extent of the FEC easement. Petitioners allege that there is confusion about the location of the proposed wells because some well locations identified in the City’s permit application did not match the coordinates assigned to certain production wells on the District’s on-line database. Actually, there is no confusion regarding the location of the wells; the well locations identified in the permit application were the well sites used for modeling purposes and for review of the application. District staff explained that the well site locations identified in the District’s database would be finalized after the wells are constructed and the exact locations have been identified using GPS technology. Contrary to Petitioners' contentions, the District’s rules do not require that an applicant own the property where the proposed production wells or monitoring wells are to be located. The District has issued many CUPs where either the subject property or the property associated with the monitoring requirements of the permit are not owned by the applicant. Recent examples include the CUPs for Orange County Utilities and the Orlando Utilities Commission. This makes sense when the applicant has the power of eminent domain or some other credible means of obtaining necessary ownership or control, such as an option contract. The District’s permit application form has a section that requires the applicant to identify who owns or controls the land on which the facility will be located. The District uses this information for noticing and contact information. Contrary to Petitioners' contentions, this section of the permit application form is not intended to create a substantive permitting standard requiring property ownership before a consumptive use permit can be issued. Petitioners argue that proof of ownership or control is necessary to determine whether a drawdown from a proposed water use will adversely affect stages or vegetation on lands other than those owned, leased, or otherwise controlled by the applicant. However, the evidence was that these impacts can be assessed based on the facts of this case. The City's need to eventually obtain ownership or legal control to exercise the rights granted by the proposed CUP may be problematic in this case and is a factor to be considered in the next two issues raised and maintained by Petitioners: whether the Area IV Wellfield is an economically feasible option; and whether the City has provided reasonable assurances that its project can become operational before the expiration date of the proposed permit. But it is not a reason to automatically deny the City's proposed CUP. Economic Feasibility Petitioners argue that the proposed Area IV Wellfield is too expensive and that the expense should be a factor in deciding whether it is in the public interest. But cost to the City is not a factor in determining whether to issue the CUP proposed in this case. Statutes and rules cited by Petitioners on this point do not apply to this CUP determination. See Conclusions of Law 277-279, infra. Implementation Before Expiration Date Litigation of a case filed by Miami Corporation to contest the legality and extent of the City's FEC easement will add to the (cost and) time necessary to implement the project. This additional time was not specifically taken into account by the City in estimating the time it would take to implement the project. The (cost and) time for litigation of the legality and extent of the City's FEC easement could be spared by exercising eminent domain instead. That probably would add to total the cost of eminent domain but might not add appreciably to the time necessary for acquisition of required ownership or control. In an imprecise way, the time for eminent domain proceedings necessary to gain ownership or control of land for monitoring sites and wetland augmentation (without time for litigation of a contest over the legality and extent of the FEC easement, or for using eminent domain instead) was factored into the time estimated for implementation of the project. With this rough estimate, the evidence was that the project could be expedited and completed in 33 months from issuance of a CUP. It is possible but not probable that the project could be implemented in less than 33 months. It is possible and more probable that it will take longer than 33 months to implement the project. In a worst case scenario, it could take as much as 59 months complete the project. But 33 months is a reasonable, if optimistic, estimate (without time for litigation of the legality and extent of the FEC easement, or for using eminent domain instead). As found, the proposed CUP expires at the end of 2010. Given the 33-month estimate for implementation (without time for litigation of a contest over the legality and extent of the FEC easement), the CUP would have to be issued by March 2008 to be completed before expiration. Given that estimate, it would be in operation for six months before expiration. It is likely that the City will apply to renew both the existing CUP for Areas II and III and the proposed CUP for Area IV. It appears from Petitioners' Response to the other PROs that one purpose for their arguments that the proposed CUP for Area IV cannot be implemented before its expiration is to buttress their arguments, already addressed, that there is no need for the proposed CUP for Area IV. Priority Water Resource Caution Area Designation As part of its water supply planning process, the District designates priority water resource caution areas. A priority water resource caution area is an area where existing and reasonably anticipated sources of water and water conservation efforts may not be adequate to supply water for all existing legal uses and anticipated future needs and to sustain the water resources and related natural systems. The area surrounding the Area IV Wellfield was designated as a priority water resource caution area in the District’s 2003 Water Supply Assessment and 2005 Water Supply Plan based on groundwater modeling prepared by District planning staffing using the ECF and Volusia County Regional Models. The fact the Area IV Wellfield is located in a priority water use caution area does not mean a consumptive use permit cannot be issued for this facility. In fact, over one- third of the District is located within a priority water resource caution area, and permits continue to be issued in those areas. Rather, the essence of the designation is the recognition of a concern, based on the regional models, that the proposed consumptive use of water might violate the wetland and lake constraints and that water resources other than fresh groundwater will be needed to supply the expected need for water in the area and in the District over the next 20 years. That does not mean that no additional groundwater withdrawals should be permitted in a designated area. Rather, it means that other resources should be developed and used along with whatever remaining additional fresh groundwater can be permitted. It is not an independent reason, apart from the permitting criteria, to deny the City's application. Impermissible Modification of Existing CUP Petitioners contend that the proposed CUP for Area IV includes an impermissible modification of the existing CUP for Areas II and III because “Other Condition” 5 limits average annual withdrawals from the Area II, III, and IV Wellfields, combined, to 5.79 mgd in 2009 and 6.01 mgd in 2010. (As indicated, the limitations would have to be reduced to no more than 5.2 mgd based on the more reasonable projected need.) However, the City’s current CUP for the Area II and III Wellfields expires in February 2008, which is before the Area IV Wellfield would become operational, so that "Other Condition" 5 will have no practical effect on the existing CUP for Areas II and III. In essence, "Other Condition" 5 serves to advise the City that it should not view the allocation for the Area IV Wellfield in addition to the City’s existing allocations for the Area II and Area III Wellfields and that any renewal of the existing CUP for Areas II and III will have to take the Area IV allocation into account. Appropriate Permit Fee Petitioners have alleged that the City has not paid the correct permit processing fee. In March 2001, the City paid the District $200 when it submitted its initial permit application to modify its existing CUP. In May 2005, the City paid the District an additional $800 when it amended its application and withdrew its request to modify its existing permit. All required permit processing fees have been paid for this CUP application 99052. Miscellaneous As to other issues raised by Petitioners in the case, the evidence did not suggest any danger of flooding, any proposed use of water reserved by rule for other uses, any effect on any established minimum flows or levels, or inadequate notice. Standing As found, Miami Corporation owns property immediately adjacent to the proposed Area IV Wellfield, and Ms. Clark owns property a little more than a mile away. Both alleged and attempted to prove that SAS drawdown from the proposed CUP would degrade wetlands on their property and interfere with their legal use of groundwater, and that saline intrusion from the proposed CUP would degrade the water quality of the UFAS resource which they use for potable water. As found, Petitioners did not prove those allegations; however, the evidence was that both Petitioners have substantial interests (the quality of water in the aquifer from which their wells withdraw water and wetlands on their property) that would be affected by the proposed CUP at least to some extent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District issue the City a CUP for Area IV as provided in the second revised TSR, except for a lower water allocation at this time, namely: 0.75 mgd on an annual average basis, with appropriately lower allocations on the other bases in the TSR, and with a combined annual average rate for Areas II, III, and IV in "Other Condition" 5 of 5.2 mgd for 2009 and 2010 instead of 5.79 mgd in 2009 and 2010, and appropriately lower combined maximum daily rates for Areas II, III, and IV in "Other Condition" 9. Jurisdiction is reserved to hear and rule on the pending motions for sanctions if renewed no later than 30 days after entry of the final order in this case. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).
Findings Of Fact General SFWMD is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. Acme is a dependent special district of the Village of Wellington, a municipality of the State of Florida. Polo is a Florida corporation and a developer in the Village of Wellington, Palm Beach County, Florida, including a 79-acre parcel of real property known as Peacock Pond, and other undeveloped property that are part of the subject of this permitting proceeding. Wellington Country Place Property Owners Association, Inc. (POA) is the property owners association for WCPPUD. Permit History 1978 Permit In 1978, SFWMD issued to Acme the original backbone SWM permit for approximately 18,000 acres, including primary drainage Basins A (to the north) and B (to the south). Pierson Road, which runs east/west, is the boundary between the two basins. (The backbone C-23 canal parallels Pierson Road to its immediate north.) Acme Basin A discharges to the C-51 canal, which flows east to the Atlantic Ocean. Acme Basin B, which consists of approximately 8,680 acres, discharges to the Loxahatchee National Wildlife Refuge (Refuge) through two Acme pump stations. The Refuge is part of what is now designated the Everglades Protection Area. The 1978 backbone permit, which modified a still earlier permit, established lower water control elevations in Basin A, which was being developed for urban use, than in Basin B, which was planned to remain largely in agricultural use. Under the 1978 permit, the maintained (regulation) stage in Basin A was set at 11' above mean sea level (msl) with discharge beginning at 12' msl during the wet season and 12' msl with discharge beginning at 13' msl during the dry season. The maintained stage in Basin B remained at 13' msl in both the wet and dry season. Under the 1978 permit, it was anticipated that routing surface water runoff in Basin A through canals and retention lakes would provide the water quality treatment required under the criteria in effect at the time (including a requirement to provide half an inch of detention over the entire Basin A for water quality treatment purposes.) At the time, planned residential development in the extreme southwest corner of Basin B was anticipated to generate only limited quantities of runoff due to the nature of typical development in 5-acre parcels; quality of runoff was expected to be better than from previous agricultural use. Presumably because there would be no change under the 1978 permit, water quality treatment in the remainder of Basin B was not addressed. 1979 Permit By 1979, Acme requested a permit modification for development of the Wellington WCPPUD, which is located entirely within Acme Basin B. The PUD's northern boundary is Pierson Road; the western boundary is the backbone C-2 canal; and the eastern boundary is the backbone C-6 canal. The north/south backbone C-4 canal divides the western third of the PUD from its eastern two-thirds; it also forms the western boundary of the area known as Peacock Pond. The southern boundary of the PUD generally follows the east/west backbone C-24 canal.2 The 1979 permit modification authorized construction and operation of water management facilities in portions of WCPPUD, including a 79-acre pumped retention area (which was to become known as Peacock Pond), pump station, and control structure. Under the 1979 permit, the maintenance stage (water control) elevation within WCPPUD only was set at 12' National Geodetic Vertical Datum (NGVD) (essentially, the same as msl) in the wet season and 13' NGVD in the dry season. The minimum road and finish floor elevations were established at elevation 16' and 17' NGVD, respectively. Without regard to seasonality, the retention area pump station was to begin operation when a stage of 13' NGVD was reached in the adjacent C-4 canal and was to discontinue operation when the system was drawn down to elevation 12' NGVD. The 1979 permit used the 79-acre area known as Peacock Pond as its central water quality feature. Runoff from WCPPUD was to be collected in roadside swales within road right-of-ways and routed by storm sewer inlets and pipe to either a proposed 12-acre lake or one of the collector swales or canals connected to the Peacock Pond site. The 1979 permit contemplated use of the Peacock Pond site as a "retention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then slowly lets the water out. In the 1979 permit, Acme was required to construct a berm or dike around the 79-acre area to create an above-ground impoundment to serve as the retention area. A pump was required to be installed at the northwest corner of Peacock Pond to pump water from the adjacent C-4 canal into the retention area. The berm or dike was to detain water on the site until it reached the level of a gravity flashboard riser outfall structure at the southwest corner of the site, which would be set at 15' NGVD and would return the water to Acme's C-4 canal just downstream of a broad-crested weir, which would be set at 14' NGVD. Additional discharge from the system would be provided by two 72-inch gravity-flow flashboard risers with crest elevation 14' NGVD-- one to the C-4 canal and the other to the C-6 canal. Water discharged from the system would flow south and west through Acme's system of Basin B canals, eventually discharging to the Refuge through the two pump stations to the south and southwest. During a rise in stage in the C-4 from 13' to 14' NGVD, the pump station in the northwest corner of Peacock Pond would continue filling the retention area. Considering pumped inflow of 4000 gallons per minute (gpm), the retention area would take 3.3 days to reach a peak stage of 16'. At that stage, 58 acre-feet of water would be stored within the retention area. SFWMD calculated that Peacock Pond would treat approximately 200 million gallons of water a year in this way. SFWMD and Acme have taken the position in this case that the sole purpose of Peacock Pond in the 1979 permit was to serve as a water quality treatment area for the Wellington WCPPUD. It is true that the 1979 permit contemplated that flood protection for Basin B would be provided through use of the two pumps discharging into the Refuge (Pump #1 capable of pumping at the rate of 100,000 gpm, and Pump #2 capable of pumping at 120,000 gpm). But, as subsequent events showed, the Peacock Pond retention area was part of an overall SWM system for WCPPUD that maintained water stage elevations there at a lower level than in the rest of Basin B. In other words, while designed primarily to provide water quality treatment, and not designated a flood control facility, it had some residual flood control benefit within WCPPUD. Actual Operation After 1979 Permit Although Peacock Pond was critical to the functioning of the SWM system for WCPPUD and Basin B, SFWMD never obtained from the owner the legal right to use it for SWM purposes. From 1979 to 1986, SFWMD was advised that the Peacock Pond facility was in substantial conformance with the permitted conditions. But some time after property, including Peacock Pond, was transferred to Landmark Land Company of Florida, Inc., the pumps in the northwest corner of Peacock Pond stopped being used regularly.3 Instead, Acme water control structure 115 (a 48-inch culvert and 72-inch flashboard riser which replaced the broad- crested weir in the C-4 canal through a 1982 permit modification) and structure 117 (discharging to the C-6 canal) were opened so that water levels in Wellington Country Place equalized with the surrounding Acme Basin B, which was controlled by the two pump stations discharging to the Refuge to the south and southwest. The evidence indicates, for at least the last ten years, the Basin B pumps have been operated to maintain water elevations of 12' NGVD in the wet season and 13' NGVD in the dry season--the same as for the County Place PUD under the 1979 permit. Under this water elevation control regime, flooding within WCPPUD was not a problem, but the water quality treatment from the Peacock Pond facility required under the 1979 permit was not being realized. The pump operation schedule under the 1979 permit did not specify a "bleed-down" mechanism. As a result, when internal stages exceeded the specified control elevation threshold, both Basin B pumps would be operated at a combined rate of 220,000 gpm until the seasonal water control elevation was again established. This operation did not take full advantage of the nutrient removal capacity of the existing system. 1989 Equestrian Estates Permit Modification In 1989, construction and operation authorization was issued for the Equestrian Estates development located within WCPPUD west of the C-4 canal. Among other things, this modification to SWM Permit No. 50-00548-S included the construction of lakes for use as wet detention ponds and a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal. However, this control structure and its associated culvert were never constructed. Peacock Pond Enforcement Proceedings Around 1997, SFWMD was informed that the Peacock Pond pump was not being operated and initially brought enforcement proceedings against Polo, which had become the owner of the property in 1993, to resume pumping into Peacock Pond. At the time, SFWMD was involved in enforcement proceedings against Polo, as owner, for unauthorized dredging and filling in Peacock Pond, and SFWMD made an incorrect assumption that Polo was the operator of the Peacock Pond facility under the 1979 permit. SFWMD subsequently realized that Acme, not Polo, was the permit holder. When Acme attempted to turn the pumps on again, Polo refused to allow Acme to do so without compensation. SFWMD then brought an enforcement action against Acme for not operating Peacock Pond in accordance with its permit. SFWMD and Acme entered into a Consent Order requiring Acme to operate Peacock Pond and the rest of the SWM system as required by the 1979 permit. Acme subsequently brought eminent domain proceedings against Polo to acquire Peacock Pond and obtained a final judgment, but the compensation required under the final judgment was prohibitive. SFWMD and the Village of Wellington then entered into a Joint Cooperation Agreement, which (among other things) required the Village of Wellington to submit an "application to modify the Peacock Pond Permit and Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond [which] must provide reasonable assurances that demonstrate that the water quality treatment, water quantity and environmental benefits associated with the Peacock Pond Permit are maintained through the modified facility or by other equivalent measures." In the meantime, SFWMD ordered Acme to set control structures 115 in the C-4 canal and 117 in the C-6 canal at 14' NGVD as required by the original 1979 permit. When this was done without operation of the Peacock Pond retention area as also contemplated and required by the 1979 Permit, the water levels caused septic tank problems to some residents in WCPPUD, leading SFWMD to issue emergency authorizations to lower the crest-settings of structures 115 and 117 to 12.5' NGVD. At those settings, water levels in WCPPUD stayed between 12' and 13' NGVD, and there have been no septic tank problems in the last two years. Specifically, measured water levels in the C-4 canal north of control structure 115 generally ranged between elevation 12' NGVD and 13' NGVD from November 2001 through October 2003, with occasional variances above or below due to drought or rain periods. Proposed Modification to Eliminate Use of Peacock Pond On May 12, 2000, Acme filed an application to modify its permit. The primary purpose of this modification was to authorize alternate SWM facilities within Basin B (primarily within WCPPUD) to maintain the water quality treatment function that was assumed would be realized by Peacock Pond in the WCPPUD permit issued in 1979. Additional components of the permit modification are: installation of a 7.8 acre flow through littoral zone within the C-2 Canal for additional cleansing of Acme Basin B water; modification of the pump operation schedule for Basin B; revision of surface water management design requirements for future development within Country Place to include additional lake acreage and littoral zones; elimination of a previously permitted (but not constructed) control structure allowing discharge from Lake No. 5 to the C- 4 Canal so that water from Lake 5 continues to drain through established canals and lakes into the C-4 Canal; modification of existing flashboard riser water control structures 115 and 117 within the C-4 and C-6 Canals to crest elevations of 12’ and 13’ NGVD, respectively, so that water will be detained upstream but water from both the eastern and western ends of the Wellington WCPPUD drain toward and into the C-4 canal during low flow; and an analysis of nutrient (and phosphorus) loading, removal and export from the Country Place system During the application process, Acme submitted detailed water quality calculations analyzing and comparing the 1979 permit, based on the land uses at that time and the anticipated phosphorous loading that would be discharged from the system, and the proposed modification with current land uses and phosphorous loading now anticipated. To support its modification application, Acme recalculated the water quality treatment currently provided by existing lakes--many of which were not planned in 1979--and other water quality treatment features in WCPPUD. Acme's calculations assumed that all land owners of undeveloped tracts in Basin B, including land owners in WCPPUD, wishing to develop their properties in the future will have to provide for adequate water quality treatment or other acceptable alternatives, as required by SFWMD regulations in place at the time the future permit applications are filed. In order to meet those requirements, future developers can either create lakes on their properties, treat their water off-site on properties such as Peacock Pond, or use other equivalent alternatives. In conformance with current SFWMD criteria, Acme’s application only considered and counted as water quality treatment features water bodies with an average width of at least 100' and a size of at least 0.5 acres. SFWMD spent an enormous amount of time reviewing the data and analyses that were submitted. SFWMD then issued numerous lengthy requests for additional administrative and technical information, requiring Acme among other things to provide water level information and perform management calculations. Acme provided necessary calculations to demonstrate that flood levels within WCPPUD would not be affected by the elimination of Peacock Pond as a water quality feature. Acme's calculations demonstrated that the water quality treatment functions currently provided by existing lakes meeting SFWMD's dimensional criteria and by on-site swales, together with the 7.8-acre off-site littoral shelf to be constructed in canal C-2, would be sufficient to replace the water quality treatment functions assumed to be provided by Peacock Pond under the 1979 permit. SFWMD issued a Staff Report on April 29, 2003, recommending approval of the application to modify the SWM permit. SFWMD found that Acme had provided reasonable assurances by Acme that the applicable permit criteria would be met. On May 15, 2003, the SFWMD Governing Board approved the Staff Report to issue a modification to SWM Permit No. 50-00548- S, Application No. 000512-12. Control Elevations and Pump Operation Schedules The proposed permit modification states that there will be a change in the permitted water control elevations and pump operation schedule within Basin B. However, as set out in Finding 17, supra, in actual practice, water elevations throughout Basin B have been maintained at the levels permitted for WCPPUD under the 1979 permit for at least the last ten years, which include the time period after the Peacock Pond pumped retention area stopped being operated as required under the 1979 permit. The proposed modifications essentially would continue the historical operation of the Acme Basin B system during this time period. In essence, the changes in Basin B outside WCPPUD will simply conform the permit conditions to actual conditions for at least the last ten years. For that reason, SFWMD and Acme has referred to modification as being only "on paper." As reflected in Finding 23(e), supra, water control structures 115 and 117 would be modified in association with this permit modification so that structure 115 (located in the C-4 canal adjacent to Peacock Pond) will have a weir crest elevation of 12' NGVD and structure 117 (located adjacent to the C-6 canal) will have a weir crest elevation of 13' NGVD. As a result, when the water level in WCPPUD exceeds 12' NGVD, it would begin to "bleed down" out of structure 115 in the C-4 canal. If the water level in WCPPUD continued to rise and reached 13' NGVD, it would begin to "bleed down" out of the 117 structure in the C-6 canal as well. Under the proposed permit modification, the pump operation schedule would be revised so that no pumping would occur until Basin B stages reached 13' NGVD. Then, the pump rate will average 30,000 gpm, which equates to a "bleed down" discharge of 20 percent of the one-inch detention above 12' NGVD per day. When the stage has been brought down to 12' NGVD, all pumping would cease. During significant storm events, when the internal stages exceed 13' NGVD, the previously permitted peak discharge rate of 220,000 gpm will be maintained. If the pumps are operated as proposed in this modification, the system will be able to take full advantage of its nutrient removal capacity. At the same time, water levels will be maintained within the ranges of historical operation over at least the last ten years. The only difference is that, except for major storm events, water levels will be allowed to "bleed down" at a slower rate. Notwithstanding these facts, Petitioners believe that control elevations in WCPPUD have always been higher than in Basin B, and are concerned that the proposed "on paper" modification is in the nature of a "smoke and mirrors" trick. Petitioners are concerned the proposed modifications will cause additional water to be detained in WCPPUD to the detriment of the equine industry there. But the evidence indicated that the their concerns are not well-taken. Under the proposed modification, there will be one inch of detention over the entire Basin B water management system between the elevations of 12' NGVD and 13' NGVD. This is the same range of elevations established for WCPPUD in the 1979 SWM permit. The calculated detention volume accounts for the volume of water which is physically accommodated in the system between 12' NGVD and 13' NGVD. There is no additional detention created in the WCPPUD system through the proposed changes. The proposed Basin B pump schedule will result in the same range of water table fluctuation as required in the 1979 SWM permit. As Petitioners' witness, Mr. Straub, testified, the system has worked well as operated for the last three years. No significant changes are to be expected as a result of the proposed pump operation schedule changes designed to achieve greater water quality treatment benefits. In combination, the modification of the pump operation schedule for Basin B and the revisions to the WCPPUD system are expected to result in an improvement in flood control with lower flood stages within WCPPUD through a more efficient water management system. Acme has demonstrated that the proposed modifications will not result in a change in actual water control elevations on Petitioners' properties; will not cause water to back up and cause flooding or septic tank problems within WCPPUD; and will comply with Florida Administrative Code Rule 40E-4.301(1)(a), (b), and (c.) The undisputed expert testimony was that Acme gave reasonable assurances that the proposed permit modification will not "lower existing water table elevations." (Emphasis added.) Fla. Admin. Code R. 40E-41.363(4). Equivalent Water Quality Treatment Provided Acme provided calculations comparing the treatment which was assumed to take place within the originally permitted surface water management system of WCPPUD (which included Peacock Pond), the treatment which is currently being provided by the existing system, and the treatment that will be provided under various assumed future scenarios. Acme demonstrated that there will be an equivalent amount of water quality treatment even though the use of Peacock Pond as a water quality retention area is being eliminated. Petitioner did not provide any contrary evidence to show that the removal of Peacock Pond reduced water quality treatment in the system. As a result, reasonable assurances were given that there will be no adverse effect on the quality of receiving waters as a result of this proposed modification. Additional Wet Detention Areas Now Exist Although the 1979 permit required only 12 acres of wet retention ponds, analysis of aerial photographs and existing permits issued after 1979 indicates that 54.4 acres of wet detention lakes meeting current regulatory criteria now exist in WCPPUD. Another 33 acres of existing wet retention areas (including canals) are present but do not meet the minimum width criteria required for wet detention ponds. Approximately another 4 acres meet the dimensional requirements but are not legally encumbered for use by Acme for water quality purposes. For example, Lakes 6 and 8 meet the dimensional criteria but are not platted as water management areas or encumbered by suitable drainage easement. A similar situation exists with Lake 9, which has been assumed to provide wet detention treatment over only 15.41 acres since the northern 2.25 acres of the 17.66-acre lake are outside the platted water management area's footprint. If all lakes, ponds, and canals within WCPPUD were counted for water quality purposes, Acme calculated that there would be enough capacity to treat approximately one inch of runoff from WCPPUD. Not counting the water bodies not meeting dimensional requirements or not legally encumbered, but assuming that future development within WCPPUD will have 13% water bodies qualifying for use as wet detention areas under current criteria, Acme calculated that there would be capacity to treat one inch runoff from current and future development within WCPPUD. (Instead of 13 percent qualifying wet detention areas, alternative equivalent water quality treatment also could be used to meet applicable water quality treatment criteria.) Planted Filter Marsh Located in C-2 Canal Provides Additional Water Quality Treatment Phosphorus loading can be described as the pounds of phosphorus which are being discharged to a water body through storm water runoff. In WCPPUD today, phosphorous loading is higher than originally anticipated and calculated when the 1979 Permit was issued due to differences in the way the land has been developed over the last 20 years. The main difference is more equestrian activity and its higher phosphorus loading than anticipated in 1979. Acme submitted detailed phosphorus loading information which is included in Exhibits 7A through 7E to the Staff Report (SFWMD Exhibit 5), comparing what the original permit anticipated to what is happening today, and what would happen with the modified system. The detailed information is summarized on Exhibit 8 to the Staff Report. To address phosphorus loading, the proposed project includes construction of a 7.8-acre filter marsh within a portion of the Acme C-2 Canal right-of-way located within Basin B about a half mile west of WCPPUD. The project will extend from the intersection of the C-2 and C-23A canals southwards approximately 6,800'. The filter marsh will treat water flowing south through the C-2 canal prior to reaching the Acme pump stations discharging into the Refuge. The existing Acme C-2 canal will be expanded to a width of approximately 80' to 130' and will incorporate a meandering 40' to 60' wide constructed and planted littoral shelf at elevation 10.0' NGVD. Adjacent to the proposed littoral zone, a 25' wide section of the canal will be excavated to an elevation of approximately 6.0' NGVD. This deeper section is proposed to prevent any reduction in hydraulic capacity of the existing C-2 Canal. The 7.8-acre area will be planted with native wetland vegetation on three centers. It is anticipated that the planted vegetation will meet or exceed the eighty percent coverage requirement within two years; however, additional plants will be installed if the area fails to meet such expectations. Monitoring will occur on a monthly basis until the filter marsh achieves a 50 percent areal coverage of desirable planted and recruited wetland vegetation. Upon attainment of the 50 percent coverage criterion, the monitoring frequency will be reduced to four times per year for a period of three years. Subsequent maintenance and monitoring events will occur semi- annually. Should exotic infestation occur, herbicide and/or hand clearing will be utilized to bring the filter marsh into compliance with desired plant specie densities. Special Condition No. 12 of the Staff Report (SFWMD Exhibit 5) requires that the Acme adhere to the filter marsh maintenance plan. The proposed littoral zone construction is expected to be initiated within six months of permit issuance and completed within six months of commencement. The pollutant loading/removal spreadsheets provide an estimate that the marsh will result in the annual removal of 33 pounds of total phosphorus. At the same time, the proposed filter marsh will add the equivalent of one-half inch of water quality treatment benefits within the entirety of Basin B. As a result, with the proposed filter marsh, Acme gave reasonable assurances that the proposed permit modification would provide "an additional fifty (50) percent retention/detention water quality treatment addition to the water quality treatment volumes required in section 5.2.1. of the Basis of Review [for projects within a Water Protection Area or Area Basin]." Fla. Admin. Code R. 40E-41.363(5). Approximately half of the proposed filter marsh will extend north of the east/west C-24 Canal, and half will extend south of it. The northern half will treat water from an area of relatively intense equestrian use just west of WCPPUD; the southern half will continue to treat water flowing through the northern half of the filter marsh. However, the southern half also will treat some water from the C-4 and C-6 canals in WCPPUD, which flows south to the C-24 and then west to the C-2. Exhibit 9B of the Staff Report (SFWMD Exhibit 5) delineates the assumed contributing area of 960 acres. BMPs Provide Improvements in Water Quality Best Management practices (BMPs) are water quality treatment operational practices to prevent pollutants from ultimately entering the receiving water body. BMPs are also often referred to as source controls. Examples of BMPs include street-sweeping and cleaning out storm gutters to control pollutants at their source. BMPs are commonly considered in ERP permitting. The Village of Wellington has mandated a BMP program in Basin B, including: an ordinance dealing with phosphorus and water quality improvement; an ordinance regulating the application of fertilizer, requiring no more than two percent phosphorus content; and an equestrian BMP requiring equestrian residuals, commonly known as manure, be collected and contained in concrete covered bins. Historically, horse manure was stockpiled in the open and exposed to rainfall. Stormwater runoff from the stockpiled manure often flowed directly into the Acme canals. Stormwater runoff from equestrian residuals has been a major contributing factor to the amount of phosphorus being discharged to the Everglades from Basin B. The Village of Wellington also is implementing BMPs for its own canal maintenance and for cleaning phosphorous-laden sediments from its canals. The calculations provided to SFWMD by Acme concerning BMPs do not assume an initial 100-percent compliance. Initially, a 20-percent compliance was assumed because the ordinances are fairly new. These BMPs were not in place when the 1979 permit was issued. Under the current application, it is expected that the BMPs throughout Basin B will significantly reduce the amount of phosphorus ultimately discharged through the two Acme pump stations to the Refuge. Although there is an increase in phosphorus loading from that anticipated in 1979, the BMPs, filter marsh, amendment to the pump operation schedule, comprehensive water quality monitoring plan, and other items in the modification offset the increase. (The modifications in the proposed permit are not designed to address the overall Basin B phosphorus problems.) Comprehensive Water Quality Monitoring Program SFWMD and the Village of Wellington have implemented a comprehensive water quality monitoring program with Basin B. This program includes existing and proposed sampling points within WCPPUD shown on Exhibits 2 and 9B of the Staff Report (SFWMD Exhibit 5). This permit modification requires that Acme continue this monitoring program as specified in Special Condition No. 11 to the Staff Report. Elimination of Existing Control Structure As stated in Finding 19, supra, a 1989 modification to the 1979 authorized construction and operation of a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal, which was never built. Instead, as shown on Exhibit 2 of the Staff Report, the existing SWM system for Equestrian Estates discharges to the C-4 Canal well to the north of the authorized control structure via a 100' wide canal. The proposed permit modification will eliminate the authorization for the Equestrian Estates control structure which was never constructed. This revision is necessary to ensure that discharge from the development will continue to occur upstream of Structure 115, as it does today, and that the on- site detention facilities within Equestrian Estates will function as modeled in the water quality analysis. Polo's Pending Application for Peacock Pond Polo has pending a separate application to SFWMD (Application No. 020215-10) requesting authorization for development of Peacock Pond as a polo field. Polo’s proposed water quality feature for its Peacock Pond polo fields development includes a lake on the north end of Peacock Pond. It appears that the lake would utilize lakes/canals 12 and 13, which are currently located at the north end and northeast corner of Peacock Pond, essentially enlarging those lakes/canals to the south and west into Peacock Pond. Polo's application is currently incomplete and fails to address a number of significant water resource issues. SFWMD mailed an initial Request for Additional Information (RAI) to Polo on March 15, 2002. Responses were due within thirty days. As of the date of the final hearing in this case, no response to the initial RAI had been submitted. Notwithstanding its pending application, Polo professes to believe that its undeveloped properties in WCPPUD are "vested," so that Polo should not be required to provide water quality treatment when developing its properties in the future. But the 1979 permit stated that it only permitted construction in certain parts of WCPPUD and that individual permit modifications would be required for the future development of additional phases. (SFWMD Exhibit 2 at p. 1; special conditions.) All "grand fathered" development already has taken place. No evidence or convincing legal argument was presented by Petitioners for the proposition that land owners seeking to develop their properties in Wellington WCPPUD now or in the future should be "vested" and thus subject to different water management regulations than other land owners seeking to develop their properties in Acme Basin B. SFWMD's Proposed Corrections to Staff Report At the Final Hearing, SFWMD suggested that two corrections be made to the Staff Report. The first would add "Section No. 20" on page 1 of the Staff Report (SFWMD Exhibit 5) to clarify the property is actually located in sections 20 and This type of change would be made administratively even without this proceeding. The other correction is proposed on page 4 of the Staff Report (SFWMD Exhibit 5), pertaining to the description of the water elevation within Basin B and Country Place, as follows: The water elevation within Basin B and Country Place was originally permitted with a wet season control elevation of 12.0' and a dry season control of 13.0' NGVD. The minimum road and finish floor elevations were established at elevation 16.0' and 17.0 NGVD, respectively. The water elevation within Basin B was permitted in 1978 with a schedule stage of 13' NGVD in the wet season and 13' NGVD in the dry season; however, the system has historically been operated with a control elevation of 12' NGVD in the wet season and 13' in the dry season. WCPPUD was originally permitted with a wet season control elevation of 12' NGVD and a dry season control elevation of 13' NGVD. The Country Place pump station discharging into Peacock Pond was to begin operation when water elevations reached 13' NGVD and discontinue when the system was drawn down to elevation 12' NGVD. The operational elevations authorized in this staff report are consistent with those authorized in 1979 for Country Place. The 1978 permit also established a minimum road grade elevation of 16' NGVD and a finished floor elevation of 17' NGVD for Basin B. The 1979 permit for Country Place established the same minimum road grade and finished floor elevations. This correction accurately describes the 1978 permit for Basin B; it is not a substantive change. These and other possible changes to the Staff Report were drafted shortly before the final hearing in the form of an "Addendum to Staff Report." Petitioners contended that this denied them due process. However, this Addendum (which was not introduced into evidence) was presented to propose corrections to minor errors in the original Staff Report and to suggest appropriate ways to address issues raised by Petitioners during prehearing procedures in this case in order to help clarify the intention of the Staff Report for Petitioners' benefit. SFWMD offered to withdraw the latter Addendum proposals if Petitioners so wished; Petitioners declined to request that these proposals be withdrawn, but none are considered to be necessary. Other Contentions Raised By Petitioners Alleged Elimination of Petitioners' Water Treatment Facilities Petitioners contended in their Second Amended Petition that the modification will cause "33 acres of previously permitted and constructed water management facilities to no longer be considered toward meeting water quality treatment." But the 33 acres referenced by the Petitioners were never counted for water quality treatment in the previous permits. Additionally, as discussed above, they do not meet the minimal dimensional criteria or have not been encumbered for water quality purposes. See Finding 41, supra. The only surface water management facility which has a change in its permitted status for water quality treatment is Peacock Pond. Future Development is Not Precluded from Proposing Alternative Water Quality Treatment Petitioners expressed a concern that the proposed permit modification would bind future development to the Acme's design assumptions--specifically, the assumption that, in order to meet SFWMD's criteria for new development, future development projects would include 13 percent lakes. This concern seems to spring primarily from the following statement on page 3 of 21 of the Staff Report (SFWMD Exhibit 5): "This permit modification requires that applicants adhere to the stated surface water management system assumptions for all future development." Reading the Staff Report as a whole, it was reasonably clear that Acme's assumption was made only for purposes of its permit modification application and would not bind future developers in WCPPUD. Rather, future applicants may propose any alternative methods that comply with Chapter 40E-4, Florida Administrative Code, and the BOR to demonstrate compliance with water quality requirements. For example, the Staff Report states on page 13: Future Country Place applicants are not precluded from proposing alternative means of treatment which can be demonstrated to provide an equivalent level of treatment. Further, the assumptions do not preclude the SFWMD from requiring additional treatment measures as necessary from an applicant to provide reasonable assurance that future projects will not cause or contribute to existing water quality problems in Basin B. The testimony of SFWMD witnesses confirmed this reading of the Staff Report. There is no need to further modify the Staff Report to allay Petitioners' expressed concern. Canals/Lakes 12 and/or 13 Not Affected Petitioners' Second Amended Petition questioned whether Acme's canals/lakes 12 and 13, which border Peacock Pond on the north and in the northeast corner, are properly located within Acme's easements. But Acme's application proposes no modifications to those canals/lakes. Not only are canals/lakes 12 and 13 not the subject of this permit modification, Petitioners introduced no competent, substantial evidence demonstrating improper placement of those conveyance features. In an abundance of caution, SFWMD suggested adding the following Special Condition Number 14 to address this issue: If a final determination is made by a court of competent jurisdiction that Acme does not own, have an easement or otherwise have the right to utilize the area where canal/lake Number 12 and/or canal/lake Number 13 is located, then within 30 days of such determination, Acme shall file an application with the SFWMD to move the canal/lake Number 12 and or canal/lake Number 13 to an area which is determined to be owned by Acme or over which Acme has an easement, or modify the surface water management system to discontinue use of canal/lake Number 12 and or canal/lake Number 13. Inclusion of this language would confirm that, if a court makes a final determination that Acme does not have the right or access to utilize Canals/Lakes Number 12 and/or 13, Acme would be required to modify the permit. While adding the suggested language to the Staff Report is appropriate, it is not necessary; reasonable assurances have been provided without any additional language that the permit criteria have been satisfied. If canal/lakes 12 and 13 should ever become unusable, thus preventing a discharge of the eastern half of WCPPUD into the C-4 canal, the drainage system could be split so that the western half discharges into the C-4 canal and the eastern half into the C-6 canal. In that case, a minor modification would be required to lower the weir at structure 117 to 12’ NGVD and the permit is modified. Mr. Higgins performed calculations to demonstrate that such a minor modification would be permittable under applicable criteria.4 Wetlands in Pod F Not Adversely Affected The Staff Report includes reference to wetlands located in the southeast corner of Pod F of WCPPUD. (Pod F itself is in the southeast corner of Section 20.) Petitioners seemed to take issue with the Staff Report's description of these wetlands. They also disputed whether Acme provided reasonable assurance that these wetlands would not be adversely affected by the proposed modifications. Specifically, Polo expressed concern that the proposed modifications would undermine a plan it has to restore wetlands in Pod F for use as mitigation for an after-the-fact permit to be issued to resolve a SFWMD cease and desist order imposed on Polo for activities in an adjacent polo field, and perhaps also as mitigation for wetland impacts by Polo and other future developers in the area. In taking these positions, Petitioners criticized SFWMD for not presenting expert testimony from a biologist. The Staff Report states that "the 3.74-acres of cypress wetland contained within Pod F" are the only other wetlands in WCPPUD besides Peacock Pond. These wetlands were described as being "in poor biological condition." Petitioners argued that the testimony of their expert supported a finding that the wetlands in Pod F actually are approximately 25 acres in size. However, her actual testimony was that her proposed wetlands restoration project was 25 acres in size. Part of her proposed restoration project includes the "vertical relocation" of higher ground now infested with melaleuca and other nuisance and exotic species. In addition, she admitted that she had not delineated wetlands in Pod F using the methodology adopted for that purpose by the State of Florida; instead, she used methodology adopted by the United States Army Corps of Engineers was used. Not only are the two methodologies different, the Army Corps methodology includes wetlands not included under the State of Florida methodology. Finally, Petitioners' expert admitted that less than 4 acres of the 25 acres included in her project area consisted of "cypress heads." Taken as a whole, the evidence did not demonstrate a need to revise the Staff Report's description of the size of the wetlands in Pod F. As for the Staff Report's description of the Pod F wetlands' "poor biological condition," this is consistent with the testimony of Petitioners' expert. She testified that the wetlands' hydrology was deficient, especially on the northern half of the restoration project area, and that the tract is "highly infested with exotic vegetation," leading to the need for restoration. The hydrology is better on the southern half of the restoration project area, where the cypress trees are healthy; but the cypress trees on the northern half of the tract are under stress, with lots of old world climbing vines on them and other infestation of exotic vegetation, including melaleuca. On site visits, the expert saw "wading birds, snakes, signs of raccoon [and n]umerous bird species." No endangered or threatened species were said to be using the tract at this time. One purpose of the restoration project would be to create better wildlife habitat. Petitioners' expert testified that if water levels were lowered in the proposed restoration project area, there could be an adverse impact on existing and planned wetlands. However, Petitioners' expert did not have evidence or information indicating historic or current water levels. Petitioners' expert also did not know whether the permit modification will lower or have any affect on the water levels in that area. Petitioners introduced neither competent evidence of current groundwater levels under the proposed wetlands mitigation project, nor competent evidence as to how the permit modification might change those groundwater levels. Acme and SFWMD presented evidence that the water levels in the C-4 and C-23 canals, directly adjacent to Pod F, will not be changed significantly as a result of the permit modification; that the proposed permit modification will have no effect on the groundwater levels in this wetland area; and that, as a result, no wetland impacts will occur from the permit modifications. Petitioners did not rebut the Respondents' evidence. As a result, Acme has demonstrated that not only groundwater and surface water flows and levels but also the value of wetland functions in Pod F will not be adversely impacted, as required by Rule 40E-4.301(d) and (g), Florida Administrative Code. The evidence was that SFWMD biologists visited the Pod F wetlands and prepared a report which formed the basis of statements in the Staff Report about the absence of wetland impacts. Given the finding that groundwater levels in the Pod F will not change, the testimony of expert biologists was not necessary. Assumed Commercial Acreage Through the testimony of Michael Nelson, Petitioners questioned a purported statement in the Staff Report that there are 24.4 acres of commercial acreage in WCPPUD. According to Mr. Nelson, there actually are only five acres of commercially zoned property in the PUD. Mr. Nelson stated that this, along with other alleged errors, undermine his confidence in SFWMD's entire evaluation of the proposed permit modification. In fact, the Staff Report, at page 8, states that "the original permit application (in 1979) included only two land uses: 935.6 acres of single family use . . . and 24.4 acres of commercial area." There was no statement that 24.4 acres is zoned commercial today. Past Violations Petitioners also assert that the proposed permit modification should be denied because Acme has not strictly abided by applicable permits. But Acme's most significant past violation was the failure to operate Peacock Pond as required by the 1979 Permit. As reflected in Findings 21 and 23, supra, the primary purpose of this proposed modification is to resolve the enforcement proceedings that arose out of the Peacock Pond violation. Acme also has been one of thousands of SFWMD permit holders who have not certified construction of their systems in conformance with the applicable permits, which is required to transfer the permit into operational status. For many years, SFWMD did not monitor permits for certification and did not enforce failure to certify permits. When monitoring and enforcement was initiated in 1995, it was found that over 12,000 permits were in violation for failure to submit the required certifications. SFWMD prioritized the missing certifications and began methodical follow-up. When SFWMD raised the issue with Acme, Acme responded, and the outstanding violations are being resolved. SFWMD saw no need to initiate formal enforcement proceedings and has been treating the outstanding violations as a "non-compliance" issue since it is a paperwork problem, not an environmental resource problem. At this time, the modifications to structures 115 and 117 in accordance with the several emergency authorizations to address septic tank problems have been certified. However, as indicated, the 1979 Permit itself cannot be certified so long as the Peacock Pond pumped retention area is not in place and operational. It is found that Acme has sufficient financial, legal, and administrative capabilities to ensure that water management modifications will be undertaken in accordance with the terms and conditions of the modified permit. (Since Acme is now a dependent special district of the Village of Wellington, the Village of Wellington actually will be responsible for installation, operation, and maintenance of these structures.) Notwithstanding the past violations, reasonable assurances have been given that Acme will comply with the terms of its proposed permit modification. Propriety of Petitioners’ Purpose Acme has raised the issue whether Petitioners participated in this proceeding for an "improper purpose," i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." § 120.595(1)(e)1, Fla. Stat. (2003). But it is found that, under the totality of circumstances, Petitioners' participation in this proceeding was not for an improper purpose, as defined by statute. Petitioners' participation in this proceeding has indeed needlessly increased Acme's cost of obtaining SFWMD's permit approval; but the evidence did not prove that this was Petitioners' primary purpose. It also is clear that Petitioners attempted to delay this proceeding through repeated requests for continuances (and other procedural and evidentiary objections) and that, while they usually based their requests for continuances in part on the alleged need for more time for more discovery, they failed to pick up voluminous copies of requested discovery documents and complained about how much money they had already spent on discovery. Nonetheless, it is found that Acme did not prove that Petitioners' primary purpose for participating in this proceeding was to delay the proceeding. It seems reasonably clear that, had Petitioners retained a competent expert engineer to evaluate its case, the expert probably would have advised Petitioners that they would not be able to successfully challenge SFWMD's proposed agency action. For that and other reasons, a reasonable person would not have raised and pursued some of the issues raised by Petitioners in this proceeding. But 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.
The Issue Whether Bay County has demonstrated its entitlement to the Permit?
Findings Of Fact The Ecologically Diverse Florida Panhandle With its high diversity of species and richness in endemic plants, the Florida Panhandle has been identified as one of six continental "biodiversity hot spots" north of Mexico. It has more species of frogs and snakes, for example, than any other equivalently-sized area in the United States and Canada and has botanical species that do not exist anywhere else in the Coastal Plain, one of the three floristic provinces of the North Atlantic American Region. The biodiversity stems from a number of factors. The Panhandle was not glaciated during the Pleistocene Period. Several major river systems that originate in the southern Appalachian Mountains terminate on the Panhandle's Gulf Coast. Its temperate climate includes relatively high rainfall. These factors promote or produce plentiful sources of surface and groundwater that encourage botanical and zoological life and, in turn, a diverse ecology. When compared to the rest of Florida, the Panhandle is relatively free from man-made impacts to its water resources. Until recently, the population growth rate lagged behind much of the state. Despite a rapid increase in the population in the late 1990s into the early part of the twenty-first century, it remains much less densely populated than areas in the I-4 Corridor and coastal peninsular Florida to the south. The Panhandle can be divided into physiographic areas of geological variation that are highly endemic; a substantial number of plant and animal species found in these areas are found nowhere else in the world. One of these areas is of central concern to this case. Located in southern Washington County and northern Bay County, it is known as the Sand Hill Lakes Area. The Sand Hill Lakes Area The Sand Hill Lakes Area (the "Area") is characterized by unusual geology that produces extraordinary ecological value. With few exceptions (see findings related to Dr. Keppner's flora and fauna inventories on the NTC/Knight Property below), the Area has not been extensively studied. The data on biological communities and water levels that exist, sparse as it is, has been obtained from historic aerials dating to 1941. The aerials are of some use in analyzing lakes and surface waters whose source is the Surficial Aquifer, but they are of limited value otherwise. They are not of use in determining the level in the Surficial Aquifer. Nor are they of assistance in determining river height when the banks of the river are covered by hardwood forest canopy. The resolution of the aerials is insufficient to show details of the various ecosystems. They do not show pitcher plants, for example, that exist at the site of hillside seepage bogs common in the Area. An aspect of the Area that the aerials do reveal is its many karst features on the surface of the land. Karst lakes and sinkholes dominate the Area and are a component of its highly unusual geology which is part of a larger system: the Dougherty Karst Plain. The Dougherty Karst Plain is characterized by numerous karst features: springs, caverns, sinkhole lakes, and sinkholes. Sinkholes In Florida, there are three types of sinkholes: cover subsidence, cover collapse, and "rock" or "cavern" collapse. Of the three, cover subsidence sinkholes are the most common in the state. Cover subsidence sinkholes form as the result of processes that occur on the surface. A cover subsidence sinkhole is usually a shallow pan typically not more than a few feet deep. Found throughout Central and South Florida, they are the most common type of sinkholes in most of peninsular Florida. In contrast, the other two major types of sinkholes (cover collapse and cavern collapse) occur as the result of processes below the surface that cause collapse of surface materials into the substrata. Both types of "collapse" sinkholes are found in the Area, but cover collapse is the more common. Cavern collapse sinkholes are relatively rare. Typical of the Area, cover subsidence sinkholes are not found on the NTC/Knight Property. The NTC/Knight Property The majority of the NTC/Knight Property is in Washington County, but the property straddles the county line so that a smaller part of it is in northern Bay County. All of the NTC/Knight Property is within the Area. The District recognizes that the NTC/Knight Property contains natural resources of extraordinary quality as does the Area generally. Over the three years that preceded the hearing, Dr. Keppner, an NTC/Knight expert, conducted extensive inventories of the flora and fauna on NTC/Knight Property. Dr. Keppner's inventory showed the NTC/Knight Property supports more than 500 species of vascular plants (flora with a system of tubes within the stem, phloem, and the xylem that exchange materials between the roots and leaves) and 300 species of animals. Among them are at least 28 vascular plants and six animals listed as imperiled (threatened or endangered) by state or federal agencies. At least 22 of the imperiled species of vascular plants and eight of the imperiled species of animals are located within an area expected to be affected by the Wellfield for which Bay County seeks the permit modification. For example, at Big Blue Lake alone where impacts were predicted by NTC/Knight experts to take place, the following imperiled plant species are found: Smoothbark, St. John's Wort, Kral's Yelloweyed Grass, Quilwort Yelloweyed Grass, Threadleaf Sundew, Panhandle Meadowbeauty, and Crystal Lake Nailwort. In addition to the Keppner inventory, NTC/Knight commissioned other studies to determine the nature of the sinkholes and whether they are connected to the Floridan Aquifer. NTC/Knight's experts determined that the property contains cover collapse and a few cavern collapse sinkholes that connect to the Floridan Aquifer. Despite evidence to the contrary submitted by the District and Bay County, the NTC/Knight determinations are accepted as facts for a number of reasons, including the lineup of the sinkholes and sinkhole lakes along identified photo-lineaments and the distribution of them in patterns that are not random. A District study using a dye test, moreover, confirmed conduit flow exists in the Area just east of the NTC/Knight Property. With regard to the distribution of the sinkholes and sinkhole lakes on the NTC/Knight Property, Dr. Sam Upchurch used the term "String of Pearls" to describe multiple sinkholes that exist along the edges of several lakes on the property. When sinkholes closer to the center of a lake are clogged or plugged with sediment and debris, the lakes continue to leak around the plugs which causes new sinkholes to form along the edge of the plugs. Examples of the "String of Pearls" formation on the edges of existing lakes are found at White Western and Big Blue Lakes on the NTC/Knight Property and at Crystal Lake nearby in Washington County. The multiple sinkholes bordering the edge of Big Blue Lake are examples of cover collapse sinkholes that, in geological terms, are relatively young as evidenced by their steep sides. In a karst area such as the Area, there is preferential flow in the conduits because of the difference of efficiency of transmission of water flowing through a porous medium of rock compared to that flowing though a conduit. Absent pumping in the Wellfield, the underlying aquifers are relatively stable. If the requested pumping does not take place, it is likely the stability will remain for a substantial period of time. It is not known with precision what will happen in the long term to the karst environment should pumping occur at the Wellfield at the rate the District proposes. When pumping occurs, however, water in the Area affected by the Wellfield will move toward the Wellfield. "[A]s it does[,] you may get some turbulent flow or vorticity in the water." Tr. 1391, (emphasis supplied). At some point, a change in the potentiometric surface and loss of buoyancy will most likely occur. This leads to concerns for Dr. Upchurch from two perspectives: One . . . is that if there is a[n affected] sinkhole lake [on the surface,] it may induce downward flow . . . the other . . . is that if it breaks the plug it may either create a new sinkhole or create a substantial drop in the level of water in the lake . . . which drains periodically, not necessarily because of a wellfield, but because that plug breaks. Id. In the first instance, lake levels could be reduced significantly. In the second, a new sinkhole could be created or the water level could drop dramatically as occurred at Lake Jackson in Tallahassee. Sand Hill Lakes Wetlands The Area contains a number of wetland communities. These include hillside seepage bogs, steepheads, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and creeks and streams in forested wetlands. A number of these wetlands occur on the NTC/Knight Property within the zone of influence in the Surficial Aquifer predicted by NTC/Knight's experts employing a model known as the "HGL Model." The wetland systems on the NTC/Knight Property are diverse, by type, plant species composition, and richness. This remarkable diversity led the District to recognize that the NTC/Knight Property contains lakes of nearly pristine quality, interconnected karst features, and endemic steephead ravines, all of which are regionally significant resources of extraordinary quality. The Area's wetlands also include many streams, among them Pine Log Creek, the majority of which is located on the NTC/Knight Property. Significant recharge to the Floridan Aquifer occurs on NTC/Knight Property. To the west, north, and east of the NTC/Knight Property are major concentrations of Floridan Aquifer springs that are crucial to the quality and character of regional surface water systems, including the Choctawhatchee River, Holmes Creek, and Econfina Creek systems. All of these surficial systems are dependent on the groundwater resources of the Area. The Area's Hillside Seepage Bogs Hillside seepage bogs are marsh-like wetland usually located on gentle slopes of the sides of valleys. They form when the Surficial Aquifer intercepts the sloping landscape allowing water to seep onto the sloped surface. The plant communities in the bogs are dominated by a great number and variety of herbaceous plants that prefer full sun. Among them are carnivorous plants. These unusual plants include the Trumpet and White-Topped pitcher plants as well as other varieties of pitcher plants. Inundation or saturation for extended periods of time is necessary for pitcher plants and most of the rest of the plant communities found in the bogs to thrive and to fend off invasion by undesirable species. Hillside seepage bogs are valued because they are among the most species-rich communities in the world. A reduction in water levels in the bogs below the root zone of associated plants will kill the plant communities that live in them and pose a threat to the continued existence of the bogs. Hillside seepage bogs were once abundant in pre- settlement Florida, but their expanse has been greatly reduced. They are now estimated to only occupy between one and five percent of their original range. On NTC/Knight Property, they have been spared to a significant degree. Numerous hillside seepage bogs continue to exist on the NTC/Knight Property primarily along the margin of Botheration Creek and its tributaries. The Area's Steepheads Steepheads are unique wetland systems. Found around the globe, they are usually regarded as a rarity. More than 50 percent of the steepheads that exist in the world are in a narrow latitudinal band that extends from Santa Rosa County in the west to Leon County in the east, a major section of the Florida Panhandle. Steepheads occur in deep sandy soils where water originating in the Surficial Aquifer carries away sand and cuts into sandy soils. The seepage emerges as a "headwater" to create a stream that conveys the water from the steephead into a river, or in some rare circumstances, into a karst lake. Over time, flow of the seepage waters results in deep, amphitheater- shaped ravines with steep valley side walls. Steepheads are important to the ecologies of the areas in which they occur. They provide habitat for a number of Florida endemic animals and plants believed to be relics of once-abundant species. Water that emerges from a steephead is perennial. Because the steep slopes of the steephead have not been disturbed over a long period of time, the water remains at a relatively constant temperature, no matter the season. Sampling of aquatic invertebrates at the Russ Pond and Tiller Mill Steepheads on the NTC/Knight Property found 41 and 33 distinct taxa, respectively, to inhabit the steepheads. Among them were a number of long-lived taxa. Their presence is consistent with the hallmark of a steephead: perennial flow of water at a relatively constant temperature. Most of the known steepheads flow into streams or rivers. Between six and ten within the Area, however, flow into Sand Hill Lakes. They have no direct connection to any surface drainage basin, thereby adding to their uniqueness. The level in the Surficial Aquifer has a direct impact on where and to what extent seepage flows from the sidewalls of a steephead. The Area's Sphagnum Bogs Sphagnum moss grows in many locations within the landscape and requires moisture. Where there is a large amount of sphagnum moss, it can form a unique community known as a sphagnum bog that is capable of supporting unique plant and animal populations. In the Area, these sphagnum bogs form along the valley sidewalls of steephead ravines and are fed by Surficial Aquifer seepage from the sidewall of the ravine. These sphagnum bogs support unique plant and animal communities, including a salamander discovered by Dr. Means that is new to science and so far only known to exist in sphagnum bogs in the Florida Panhandle. The Area's Sinkhole Lakes and their Littoral Seepage Slopes Sand Hill Lakes are nutrient poor, or "oligotrophic," receiving most of their nutrient inputs through exchange with the plant and animal communities on the adjacent littoral shelves during periods of high water levels. Fluctuating water levels in the Sand Hill Lakes allow a littoral zone with many different micro-habitats. Areas closest to the lakes are inundated regularly, but higher areas of the littoral zone are generally dry and inundated only every ten or 20 years -- just often enough to prevent encroachment of trees. In a few instances, portions of the littoral zones are inundated by seepage from the Surficial Aquifer. Above the normal low water of the Sand Hill Lakes, the littoral shelf occurs along a low gradient. As the littoral shelf transitions into the lake bottom and toward the deeper parts of the lake, there is an inflection point, where the gradient of the lake bottom becomes much steeper than the littoral shelf. If lake water levels fall below that natural inflection point, gully erosion will occur. The flow of water will be changed along the littoral shelf from seepage sheet flow over a wide expanse to water flowing down gullies in a concentrated stream. This change in flow will result in a loss of area needed by certain seepage dependent plants and animals as well as increased sedimentation from erosion. Big Blue Lake is unique because it boasts the largest known littoral zone seepage area of any Sand Hill Lake. The seepage zone along Big Blue Lake supports a number of rare plant species, including the Thread-Leaf Sundew, Smoothed Barked St. Johns Wort, and Crystal Lake Nailwort. The Area's Temporary Ponds Temporary ponds are small isolated water bodies that generally have no surface water inlet or outlet. Typically very shallow, they are sometimes wet and sometimes dry. Temporary ponds can range from basins that have continuous water for three to five years, to basins that have standing water for a month or two, every two to four years. These conditions limit their occupation by fish and, therefore, provide ideal conditions for amphibian reproduction which only occurs when water levels are maintained long enough to complete a reproductive cycle. In the Area, temporary ponds are a direct expression of the Surficial Aquifer and contain no known restrictive layer that might cause water to be "perched" above the Surficial Aquifer. Temporary ponds are critical to the viability of amphibian populations and support high amphibian biodiversity. A given pond can contain between five and eight species of salamander, and between 12 and 15 species of frogs. There has been a decline recently in the population of frogs and other amphibians that depend upon temporary ponds. The decline is due in part to ditching and other anthropogenic activities that have altered the hydrology of temporary ponds. Temporary ponds have a higher likelihood of being harmed by a drawdown than larger, connected wetlands systems. Lowered Surficial Aquifer water levels would lower water levels in temporary ponds and, thereby, threaten amphibian reproduction. Creeks/Streams in Forested Wetlands Streams are classified on the basis of the consistency of flowing water, including perennial (always flowing), intermittent (flowing part of the year), and ephemeral (flowing only occasionally during rain events). The type of stream flow is important because movement of water is essential to support aquatic systems in stream habitats. The NTC/Knight Property includes a number of stream systems, including Botheration Creek and Pine Log Creek. Botheration Creek is fed by groundwater discharge and originates, in large part, on the NTC/Knight Property. Botheration Creek flows from east to west until it intersects Pine Log Creek on the southwest part of the NTC/Knight Property. Botheration Creek provides Pine Log Creek with approximately 89 percent of Pine Log Creek's flow. From the confluence, Pine Log Creek flows south and west into the Pine Log State Forest and eventually joins the Choctawhatchee River. Botheration Creek contains high quality water and a diverse mix of aquatic invertebrates and fish. Sampling at a stage recorder located approximately two miles west of the eastern boundary of the NTC/Knight Property ("BCS-01") identified 46 taxa of macroinvertebrates, including six long- lived taxa, and mussels. The water level in Botheration Creek at BCS-01 was measured to be between 0.1 and 0.32 feet by four measurements taken from October 2010 to July 2011. Nonetheless, the presence of long-lived taxa and mussels indicates that, at BCS-01, Botheration Creek is a perennial stream. Carbon export from streams provides nutrients that feed the stream system. Headwater streams like Botheration Creek and its tributaries are essential to carbon export. For carbon export to occur, a stream must have out-of-bank flood events regularly to promote nutrient exchange with the flood plain. Bay County and its Water Supply Prior to 1961, the County obtained its public water supply from wellfields located near downtown Panama City. The wellfields drew from the Floridan Aquifer. An assessment of the pre-1961 groundwater pumping appears in a District Water Supply Assessment released in June 1998. In summary, it found that near Panama City, the potentiometric surface was substantially depressed by the pumping. Due to the threat of saltwater intrusion, the Deer Point Lake Reservoir (the "Reservoir") was constructed as an alternate water supply. A local paper mill, the city of Panama City, and Tyndall Air Force Base, all began to obtain public supply water from the Reservoir. Six years after the construction of the Reservoir, the Floridan Aquifer's water levels had rebounded to pre-pumping levels. See NTC/Knight Ex. 93 at 69. The authorization for the Reservoir began in the 1950's when the Florida Legislature passed a series of laws that granted Bay County authority to create a saltwater barrier dam in North Bay, an arm of the St. Andrews Bay saltwater estuary. The laws also allowed Panama City to develop and operate a surface freshwater reservoir to supply water for public use. The Deer Point Lake Dam (the "Dam") was built in 1961 from metal sheet piling installed across a portion of North Bay. The Dam created the Reservoir. The watershed of the Reservoir includes portions of Jackson, Calhoun, Washington, and Bay Counties and covers approximately 438 square miles. The Reservoir receives freshwater inflow from several tributaries, including Econfina Creek, Big Cedar Creek, Bear Creek/Little Bear Creek, and Bayou George Creek, totaling about 900 cubic feet per second ("cfs") or approximately 582 MGD. The volume of inflow would increase substantially, at least two-fold, during a 100-year storm event. The Dam is made of concrete and steel. Above it is a bridge and two-lane county road roughly 11.5 feet above sea level. The bridge is tied to the Dam by pylons. The top of the Dam is 4.5 feet above sea level, leaving a distance between the Dam and the bridge bottom of about seven feet. There is an additional structure above the Dam that contains gates, which swing open from the force of water on the Reservoir's side of the Dam. Capable of releasing approximately 550 MGD of freshwater into the saltwater bay, the gates keep the level of the Reservoir at about five feet above sea level. The height of the Dam and the gate structure leaves a gap between the bottom of the bridge deck and the top of the structure of "somewhere between 12 and 14 inches, a little better than a foot." Tr. 140. If storm surge from the Gulf of Mexico and St. Andrew's Bay were to top the Dam and the gate structure, the gap would allow saltwater to enter the Reservoir. The gates and the Dam structure are not designed to address storm surge. The Dam is approximately four feet thick and roughly 1,450 feet long. The 12-to-14 inch gap extends across the length of the Dam. With normal reservoir levels, the volume of water it contains is approximately 32,000-acre-feet or roughly 10.4 billion gallons. Bay County needs to drawdown the lake level for fish and wildlife purposes, the control of aquatic growth, and weed control. In winter, FWS prescribes a 45-day period of time to draw down the lake to expose the banks to kill vegetation. The last time the lake was drawn down by the County, the water level dropped approximately three feet, from five feet above sea level to two feet above sea level. This process took approximately six days and 16 hours, or approximately 53 hours/foot. Repair of the Dam and its Maintenance The Dam has been repaired three times. The last repair was following Hurricane Opal which hit the Florida Panhandle in the fall of 1995. During Hurricane Opal, "saltwater . . . entered . . . the [R]eservoir . . . [t]hat took 20-some days to flush out . . . ." Tr. 135. No evidence was presented regarding the Dam's vulnerability from the perspective of structural integrity during normal or emergency conditions. Other than the inference drawn from Mr. Lackemacher's testimony that Hurricane Opal damaged the Dam in 1995, no evidence was presented to suggest that the Dam's structure is vulnerable to damage caused by a storm surge, wave effect or other conditions caused by a storm of any magnitude. After the last of the three repairs, Bay County implemented a detailed maintenance program. Based upon the latest inspection reports, the Dam is in good condition and structurally sound. No work other than routine inspection and maintenance is currently planned. The 1991 Agreement and the WTP Bay County's current withdrawal of water from the Reservoir is based on a 1991 agreement between Bay County and the District (the "1991 Agreement"). See Joint Ex. Vol. II, Tab K. The 1991 Agreement allows Bay County after the year 2010 to withdraw 98 MGD (annual average) with a maximum daily withdrawal of 107 MGD. The 1991 Agreement, still in effect, authorizes Bay County to withdraw enough water from the Reservoir to meet its needs through 2040. Water for public supply is withdrawn from the Reservoir by a water utility pump station (the "Pump Station") located a short distance from the Dam in Williams Bayou. The water is piped to the water utility's treatment plant (the "Water Treatment Plant") five miles away. The Water Treatment Plant treats 60 MGD. Following treatment, the water is distributed to Bay County's wholesale and retail customers. The Reservoir water available to Bay County utilities is more than adequate to fulfill the water consumption demands of Bay County's system through a 20-year permit horizon. The transmission line between the Pump Station and the Water Treatment Plant has fittings that were designed to allow transmission of groundwater withdrawn from groundwater wells to be located along the transmission line to the Water Treatment Plant to provide a backup supply for the Reservoir. Bay County's Current Use of Potable Water The amount of water consumed by Bay County utility customers has declined over the last five years. Bay County's current use of water, based upon the average of the 13 months prior to the hearing, was 24.5 MGD, an amount that is only 25 percent of the water allocation authorized by the 1991 Agreement. There are approximately 560,000 linear feet of main transmission lines in Bay County with small service lines accounting for another several hundred thousand linear feet. Bay County furnishes water directly to approximately 6,000 retail customers in areas known as North Bay, Bay County, and the former Cedar Grove area, which is now part of Bay County. Wholesale customers include Panama City Beach, Panama City, Mexico Beach, Callaway, Parker, Springfield, and parts of Lynn Haven. The County also furnishes potable water to Tyndall Air Force Base. Lynn Haven does have some water supply wells; however, Bay County still supplements this water supply by approximately 30 percent. No other cities serviced by Bay County produce their own water. Bay County has a population of approximately 165,000- 170,000 permanent residents, which includes residents of the cities. The Bay County area experiences seasonal tourism. From spring break to July 4th, the population can grow to more than 300,000. The users of Bay County's drinking water supplies include hospitals, Tyndall Air Force Base, and the Naval Support Activity of Panama City ("NSA"). The County has 178 doctor's offices, 56 dental offices, 29 schools, 21 fire departments, 12 walk-in-clinics, six nursing and rehabilitation homes, six major employers, three colleges and universities, and two major hospitals, all which are provided drinking water by Bay County. Panama City Beach is the community which has the highest water use. Panama City Beach's average daily use is approximately 12 MGD. The peak day of usage for all of Bay County's customers over the 13 months prior to the hearing was 40 MGD. Bay County sells water to community water utility systems referred to as a "consecutive system." They include Panama City Beach, Panama City, and Mexico Beach. Bay County's request for 30 MGD contemplates provision of water for all essential and non-essential water uses occurring within the consecutive system. Bay County and the consecutive systems are subject to the District's regulations regarding emergency water use restrictions which typically restrict the non-essential use of water during water shortage emergencies. Hurricanes, Train Wrecks, and Post-9/11 America At the District's recommendation, Bay County has been considering a backup potable water source since the mid-1980's. Bay County's main concern is that it has inadequate alternatives to the Reservoir should it be contaminated. Contamination to date has been minimal. In the period of time after the 1961 creation of the Reservoir to the present, the Dam and the Reservoir have suffered no major damage or impacts from a tropical storm. No tropical storm since 1961 has disrupted Bay County's ability to provide potable water. Even Hurricane Opal in 1995 did not disrupt the water supply. Recent hurricane activity in the Gulf of Mexico, however, has aroused the County's fears. Should a storm of sufficient magnitude make landfall in proximity to the Dam, there is potential for saltwater contamination of the Reservoir from storm surge or loss of impounded freshwater due to damage to the Dam. Mr. Lackemacher, assistant director of the Bay County Utility Department and manager of the water and wastewater divisions of the department, has experience with other hurricanes in Palm Beach, Florida, and Hurricane Hugo in Myrtle Beach, South Carolina, during which water utilities suffered disruption of their distribution systems. The experience bolsters his concern about the damage a storm could cause Bay County's source of public water supply. Bay County's intake structure at Williams Bayou is approximately one mile away from the Dam. The location of the Pump Station puts it at risk for damage from a strong storm or hurricane. There is a rail line near the Reservoir. It runs along Highway 231 and over creeks that flow into the Reservoir, including the Econfina Creek. The rail line is known as "Bayline." Bayline's most frequent customers are the paper mill and the Port of Panama City. Not a passenger line, Bayline is used for the transport of industrial and chemical supplies. In 1978, a train derailment occurred on tracks adjacent to creeks that feed the Reservoir. The derailment led to a chlorine gas leak into the atmosphere. There was no proof offered at hearing of contamination of the Reservoir. There has never been a spill that resulted in a hazardous chemical or pollutant being introduced into the Reservoir. Bay County has not imposed restrictions on the type of vehicles that are allowed to use, or the material that may pass over, the county road on the bridge above the Dam. Nonetheless, in addition to saltwater contamination, Bay County also bases the need for an alternative water source on the possibility of a discharge into the Reservoir of toxic substances from a future train derailment. Bay County is also concerned about contamination of the Reservoir from a terrorist attack. In short, Bay County is concerned about "anything that could affect the water quality and water in Deer Point Lake." Tr. 184. The concerns led Bay County to file its application for the Wellfield on lands currently owned by the St. Joe Company. Consisting of ten wells spaced over an area of approximately ten square miles, the Wellfield would have a capacity of 30 MGD. Bay County's application was preceded by the development of the District's Region III Regional Water Supply Plan and efforts to acquire funding. Funding for the Wellfield and the Region III Regional Water Supply Plan Shortly after the commencement of the planning for the Wellfield, the District, in May 2007, authorized the use of funds from the State's Water Protection and Sustainability Trust Fund ("WPSTF"). The WPSTF is intended for development of alternative water supplies. In cooperation with the District, Bay County began drilling a test well followed by analyses to evaluate the water for potable suitability. In October of the same year, the District passed a resolution to request the Department of Environmental Protection to release $500,000 from the WPSTF to the District for local utilities in Bay and Escambia Counties for "Water Resource Development." NTC/Knight Ex. 195, p. 2. The amount was to be used "to provide funding for implementation of alternative water supply development and water resource developments projects pursuant to sections 403.890 and 373.1961, F.S." Id., p. 1. In February 2008, the District began a process to develop a regional water supply plan for Bay County. If the Wellfield were designated in the applicable regional water supply plan as "nontraditional for a water supply planning region," then it would meet the definition of "alternative water supplies" found in section 373.019(1), Florida Statutes. "In evaluating an application for consumptive use of water which proposes the use of an alternative water supply project as described in the regional water supply plan," the District is mandated "to presume that the alternative water supply is consistent with the public interest " § 373.223(5). Whether the Wellfield is to be presumed to be in the public interest depends on whether the application proposes the use of an alternative water supply project as described in the District's Region III Water (Bay County) Water Supply Plan adopted in 2008. The 2008 RWSP Pursuant to the process commenced in February, the District in August 2008 produced the Region III (Bay County) Regional Water Supply Plan (the "2008 RWSP"). In a section entitled "Identification of Alternative Water Supply Development Projects," the 2008 RWSP provides the following: "All of the water supply development projects identified in Table 4 are interrelated and considered alternative, nontraditional water supply development projects." NTC/Knight Ex. 187 at 14. Table 4 of the 2008 RWSP does not specifically identify the Wellfield. It identifies three projects in general terms. The first of the three (the only one that arguably covers the Wellfield) shows "Bay County Utilities" as the sole entity under the heading "Responsible Entities." Id. at 13. The project is: "Inland Ground Water Source Development and Water Supply Source Protection." Id. Under the heading, "Purpose/Objective," the Table states for the first project, "Develop inland alternative water supply sources to meet future demands and abate risks of salt water intrusion and extreme drought." Id. The Table shows "Estimated Quantity (MGD)" to be "10.0." Id. (In July 2008, the District's executive director informed Bay County that the Wellfield could produce 10 MGD.) The "Time Frame" is listed as 2008-12, and the "Estimated Funding" is "$5,200,000 WPSPTF" and "$7,800,000 Local, NWFWMD." Id. While not specifically identified in the 2008 RWSP, Table 4's project description supports a finding that the Wellfield is, in fact, one of the inland alternative water supply sources. The 2008 RWSP, therefore, designates the Wellfield as a "nontraditional" water supply source for Region III.4/ (The Wellfield also, therefore, meets the definition of "[a]lternative water supplies" in section 373.019(1). The demonstration of a prima facie case by Bay County and the District, however, make the applicability of the presumption a moot point. See Conclusions of Law, below.) Water Supply Assessments and Re-evaluations Development of a regional water supply plan by the governing board of each water management district is mandated "where [the governing board] determines that existing and reasonably anticipated sources of water are not adequate to supply water for all existing and future reasonable-beneficial uses and to sustain the water resources and related natural systems for the planning period." § 373.709(1), Fla. Stat. (the "Regional Water Supply Planning Statute"). The District determined in its 1998 District Water Supply Assessment ("WSA") for Region III (Bay County) that the existing and reasonably anticipated water sources are adequate to meet the requirements of existing legal users and reasonably anticipated future water supply needs of the region through the year 2020, while sustaining the water resource and related natural systems. See NTC/Knight 93 at 79. In 2003, Ron Bartel, the director of the District's Resource Management Division, issued a memorandum to the Governing Board (the "2003 Re-evaluation Memorandum"), the subject of which is "Regional Water Supply Planning Re- evaluation." NTC/Knight 95 (page stamped 42). The 2003 Re-evaluation Memorandum sets out the following with regard to when a "water supply plan" is needed: The primary test we have used for making a determination that a water supply plan was "not needed" for each region is that projected consumptive use demands for water from major water users do not exceed water available from traditional sources without having adverse impacts on water resources and related natural systems. Similarly, regional water supply planning is initiated "where it is determined that sources of water are not adequate for the planning period (20) years to supply water for all existing and reasonable-beneficial uses and to sustain the water resources and related natural systems." Id. With regard to the need for a Water Supply Plan for Bay County the 2003 Re-evaluation Memorandum states: [I]n Bay County (Region III), sufficient quantities have been allocated for surface water withdrawal from Deer Point Lake Reservoir through the District's consumptive use permitting program extending through the year 2040. In this area, the District is also scheduled to complete a minimum flow and level determination for the lake by the year 2006. This determination will be useful for deciding if additional water supply planning is needed before the permit expires in 2040. Id. (page stamped 43). The 2008 RWSP's designation of the Wellfield is justified in the minutes of the Governing Board meeting at which the 2008 RWSP's approval took place: While the reservoir has largely replaced the use of coastal public supply wells historically impacted by saltwater intrusion, there remain challenges within the region that make development and implementation of a Regional Water Supply Plan (RWSP) appropriate. Development of alternative water supplies would diversify public supply sources and help drought-proof the region through establishment of facility interconnections. Development of alternative supplies would also minimize vulnerability associated with salt water potentially flowing into the reservoir during major hurricane events. Id., p. 3 of 4. The adoption of the 2008 RWSP was followed in December 2008 by the District's 2008 Water Supply Assessment Update. The update is consistent with the earlier determinations of the adequacy of the Reservoir as a water supply source for the foreseeable future (in the case of the update, through 2030). The update also voices the concern about water quality impacts from storm surge. The update concludes with the following: In Region III, the existing and reasonably anticipated surface water resources are adequate to meet the requirements of existing and reasonably anticipated future average demands and demands for a 1-in-10 year drought through 2030, while sustaining water resources and related natural systems. However, the major concern for potential water quality impacts is that resulting from hurricane storm surge. A Regional Water Supply Plan (NWFWMD 2008) has recently been prepared for Region III to address concerns associated with existing surface water systems. NTC/Knight Ex. 101, p. 3-41. The Parties Washington County is a political subdivision of the State of Florida. Washington County is located directly north of Bay County and the Wellfield and within one mile of some of the proposed wells. Washington County includes thousands of wetlands and open water systems. Because of the hydro-geologic system in the area of the Wellfield, if there are wetland, Surficial Aquifer, and surface water impacts from the withdrawal under the Permit, it is likely that impacts will occur in Washington County. Washington County has a substantial interest in protection, preservation, and conservation of its natural resources, including lakes, springs, and wetlands, and the flora and fauna that depend on these water resources, especially endangered flora and fauna. Washington County has a substantial interest in the protection of all water resources in Washington County because of the close relationship between surface waters, groundwater, and the potable water supply used by Washington County residents. NTC/Knight is the owner of approximately 55,000 acres of land located in northern Bay County and southern Washington County. The NTC/Knight Property includes thousands of acres of wetlands and open waters, including Sand Hill Lakes, steepheads, hillside seepage bogs, sphagnum bogs, littoral seepage slopes around certain Sand Hill Lakes, temporary ponds, and forested wetlands. A large portion of the NTC/Knight Property is directly adjacent to the Wellfield and within the HGL Model projected drawdown contour. Based on the projected amount of drawdown from pumping at the proposed average rate of 5 MGD, the 0.5 projected drawdown contour predicted by the HGL Modeling Report (see Finding of Fact 121, below) extends over thousands of acres of the property. NTC/Knight has a substantial interest in the protection of the surface and groundwater directly on, under, and adjacent to its property. The water supports the numerous ecosystems of extraordinary value located on the property. James Murfee and Lee Lapensohn are individuals, who reside in Bay County on property fronting on and beneath Tank Pond approximately five miles from the Wellfield. Petitioners Murfee and Lapensohn have a well which extends into the Intermediate Aquifer. The Murfee and Lapensohn properties are within the HGL Model projected drawdown contour. Petitioners Murfee and Lapensohn have a substantial interest in the protection of their drinking water supply well and the surface waters directly on and adjacent to their properties. Bay County, the applicant, is a political subdivision of the State of Florida. The District is a water management district created by section 373.069(1). It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. Section 120.569(2)(p), Florida Statutes Section 120.569(2)(p), in pertinent part, provides: For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency’s staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance. Paragraph (p) was added to section 120.569(2) in the 2011 Session of the Florida Legislature. Accordingly, the final hearing commenced with the Bay County and the District's presentation of its prima facie case by submitting the application, supporting documentation, and the District's approval of the application. Respondents also presented the testimony of four witnesses in the hearing's first phase. Phase I of the Final Hearing: Bay County's Application, Supporting Documents, the District's Approval and Supporting Testimony The Application File At the final hearing, Bay County and the District offered the "application file," marked as Joint Exhibit Binder Volumes I-IV (the "Application File") in the hearing's first phase. It was admitted into evidence. A document entitled "Alternate Water Supply Report - Bay County Water Division" dated May 20, 2008 (the "Hatch Mott MacDonald Report") is contained in the Application File. See Joint Ex. Vol. I, Tab B. The Hatch Mott MacDonald Report is a preliminary evaluation of a wellfield with 22 wells, an "initial phase . . . [of] five (5) wells producing 5 MGD and the final phase . . . [of] 17 wells, producing 25 MGD." Id. at 1. The evaluation includes the gathering of information, a recommendation for the best method of treatment, an analysis of whether individual well sites or a centralized site would be superior, a hydraulic model and analysis, and the potential construction and operation costs. The report concludes in its Executive Summary: HMM's preliminary results, based upon water analysis of Well No. 1, indicate that only disinfection will be required for potable water treatment. Additionally, the hydraulic analysis indicated that the wells are capable of providing the initial 5 MGD and future 25 MGD to the proposed connection point along Highway 388 without re-pumping. Adequate storage for fire protection should be considered at current and future service areas. The use of chlorine gas at each well site during the initial phase had the lowest present worth of $16,770,270; that is, the smallest amount of funds needed today to build, operate, and maintain the system. The use of chlorine gas at each well in the final phase had a present worth of $41,245,118, only slightly more than the present worth of $40,834,245 for on-site Id. generation of disinfectant at three (3) central facilities. The Application File contains a response to a District request for additional information (the "2009 RAI Response") submitted by the Bay County Services Utility Director and received by the District in September 2009. See Joint Ex. Vol. II, Tab K. The 2009 RAI Response contains the 1991 Agreement and numerous other documents. Among them is a report prepared by HydroGeoLogic, Inc. ("HGL") entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" dated September 2009 (the "2009 HGL Modeling Report"). The report predicts impacts that would be created to the surrounding aquifers as a result of the Wellfield pumping, but recommends that additional data be obtained. The Application File contains the District's Notice dated March 25, 2010. See Joint Ex. Vol. III, Tab B. Attached to the Notice is a draft of the Permit and a staff report from the District recommending approval with conditions. Condition 11 of the Permit's standard conditions obligates Bay County to mitigate any significant adverse impacts caused by withdrawals and reserves the right to the District to curtail permitted withdrawal rates "if the withdrawal causes significant adverse impact on the resource and legal uses of water, or adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. III, Tab B, p. 3 of 17. Attachment A to the Permit requires conditions in addition to the standard conditions contained in the body of the Permit. Paragraph 12 of Attachment A, for example, requires that Bay County implement and maintain a water and conservation efficiency program with a number of goals. Attachment B to the Permit requires a monitoring and evaluation program and wetland monitoring of adjacent properties to determine if the pumping causes adverse impacts to wetland areas, including habitat and species utilization. The Application File contains a revised modeling report also entitled "Groundwater Model Development for the Assessment of a New Wellfield in Bay County, Florida" (the "2011 Revised HGL Modeling Report" or the "HGL Model Report"). See Joint Ex. Vol. III, Tab P. The 2011 Revised HGL Modeling Report predicts impacts of the pumping of the Wellfield on the Upper Floridan Aquifer and the Surficial Aquifer. The HGL Model is based on an adaptation of an original model first developed by the U.S. Geological Survey (USGS) and then further adapted by HGL. The adapted model is known as MODFLOW-SURFACT. The MODFLOW-SURFACT Model has been used in excess of 600 applications and is used worldwide. The HGL Model predicted impact from pumping when wellfield pumping achieves a "steady state." Steady state impact is achieved after 10-12 years of constant pumping. The impact and the area of impact is depicted on Figure 5.1b(1) of the 2011 Revised HGL Modeling Report. The predicted drawdown of the Surficial Aquifer is predicted to be six inches (0.5 ft) within the areas indicated. The Application File shows that the permit was revised twice. Ultimately, a Second Revised Notice of Proposed Agency Action dated July 22, 2011, was issued by the District. Attached to the Second Revised NOPAA is the District's Permit. See Joint Ex. Vol. IV, Tab U. A revised Staff Report from the District dated July 18, 2011, is also included in Volume IV of the joint exhibits. See id., Tab Q. The Permit as supported by the staff report allows an average daily withdrawal of 5 MGD, a maximum daily withdrawal of 30 MGD for no more than 60 days per year (with a maximum of 52 consecutive days), and a maximum monthly amount of 775 million gallons. See Joint Ex. Vol. IV, Tab U. The Permit also includes the LTEMP jointly prepared by the Applicant and the District. See id., Attachment B. The Permit requires Bay County to "mitigate any significant adverse impact caused by withdrawals . . . on the resource and legal water withdrawals and uses, and on adjacent land use, which existed at the time of the permit application." Joint Ex. Vol. IV, Tab R, p. 3 of 11. If the District receives notice of an impact from the existing legal user, it contacts the utility. "Within 72 hours [the utility has] a well contractor out there and they have determined what the problem is." Tr. 615. There are no time requirements for the resolution of the impact or any other resolution procedures in the Permit. Definitions of Emergency and Maintenance Amounts The Permit does not include a definition of when the Reservoir may be considered to be unavailable as a public water supply. That determination is left to Bay County. The Permit does not set a withdrawal limit lower than the limits detailed above for maintenance of the Wellfield. There is one set of withdrawal limits. They apply irrespective of the purpose of the withdrawals, that is, whether for backup in an emergency, maintenance, or some other purpose that falls under Public Supply or Industrial Use. Conditions and Monitoring Requirements Bay County is required to mitigate any significant adverse impacts on resources and legal water withdrawals and uses caused by the County's withdrawal from the Wellfield. In addition, the District reserves the right to curtail permitted withdrawal rates if Bay County's withdrawal causes adverse impacts on local resources and legal uses of water in existence at the time of the permit application. In the event of a declared water shortage, the Permit requires Bay County to make water withdrawal reductions ordered by the District. In addition, the District may alter, modify, or deactivate all or parts of the Permit. Attachment A to the Permit, states: The Permittee shall not exceed total, combined groundwater and surface water (authorized in Individual Water Use Permit No. 19910142) withdrawals of an average daily withdrawal of 98,000,000 gallons, a maximum daily withdrawal of 107,000,000 gallons and a maximum monthly withdrawal of 2,487,750,000 gallons. Joint Ex. Vol. IV, Tab U, p. 4 of 11. The inclusion of "surface water" in the condition covers withdrawals from the Reservoir. The combination of actual withdrawals from the Wellfield and actual withdrawals from the Reservoir, therefore, means that Bay County may not exceed the limitations of the withdrawals authorized by the 1991 Agreement. Attachment A to the Permit further explains how Bay County must mitigate harm caused by groundwater withdrawals. The Permittee, within seven days of determination or notification by the District that the authorized groundwater withdrawal is causing harm to the resources, shall cease or reduce, as directed by the District, its pumping activity. The Permittee shall retain the services of a qualified, licensed professional to investigate allegations of interference with an existing, legal groundwater use. The Permittee shall ensure their chosen contractor investigates the alleged interference within 72 hours of the allegation being made. If it is determined that the use of a well has been impaired as a result of the Permittee's operation, the Permittee shall undertake the required mitigation or some other arrangement mutually agreeable to the Permittee and the affected party. The Permittee shall be responsible for the payment of services rendered by the licensed water well contractor and/or professional geologist. The Permittee, within 30 days of any allegation of interference, shall submit a report to the District including the date of the allegation, the name and contact information of the party making the allegation, the result of the investigation made and any mitigation action undertaken. Joint Ex. Vol. IV, Tab U, Attachment A, p. 4 of 11. Bay County is also required, within two years from the Permit's issuance, to submit to the District for review and approval a contingency plan to mitigate potential impacts. The County must wait one full year prior to commencing withdrawal of groundwater for production purposes. During the one-year period, the County must complete groundwater, surface water, and wetland monitoring. The requirements of the mandatory monitoring are found in Attachment B of the Permit, LTEMP. See Joint Ex. Vol. IV, Tab U, Attachment B. The LTEMP "is designed to track trends in ecological and hydrological conditions caused by naturally occurring fluctuations in rainfall, which may affect ground and surface water hydrologic conditions; and to identify potential effects caused by wellfield pumping." Joint Ex. Vol. IV, Tab U, Attachment B at 1. If a substantive deviation occurs from predictions made by the HGL Modeling, or if any other hydrologic or ecologic changes due to the withdrawals are observed at monitoring sites, the District is required to review and, in consultation with Bay County, appropriately revise the LTEMP as necessary with the aim that the monitoring will assure that the conditions for issuance of the Permit are being met. Testimony in Support of the Application In addition to the documentary evidence offered in the first phase of the proceeding, Bay County and the District presented the testimony of several witnesses. These witnesses testified as to background and the 2008 RWSP, the vulnerability of the Reservoir to saltwater contamination from storm surge, and the basis for the District's decision. Vulnerability to Storm Surge There is a one percent chance every year of a 100- year storm event. Flood Insurance Rates Maps ("FIRMS") show that the 100-year water level (the level of storm surge in a 100-year storm event) at the Dam will reach 11 feet NAVD, two feet above the top of the gate structure above the Dam. The Federal Emergency Management Agency ("FEMA") and the National Weather Service ("NWS") have developed the Sea, Lake, and Overland Surge from Hurricanes ("SLOSH") model, which estimates storm surge depths resulting from historical, hypothetical, or predicted hurricanes. A Florida Department of Emergency Management's SLOSH model of the Panama City area shows maximum surge levels for Storm Categories 1, 2, 3, 4, and 5, in NAVD feet as 3.3, 5.8, 10.8, 14.1, and 18.1, respectively. The SLOSH model, in all likelihood, is a low estimation. It is reasonable to expect surge levels in a Category 3 hurricane that passes directly over the Dam, for example, to be higher than 10.8 feet NAVD predicted by the SLOSH model at the Dam. According to the National Oceanic and Atmospheric Administration's ("NOAA") database, 43 tropical storms and hurricanes have passed within 200 miles of the Reservoir between 1970 and 2010 and 20 have come within 100 miles. None have made landfall closer than 40 miles away from the Dam. Of the 20 storms passing within 100 miles of the Reservoir, four have reached Category 3 strength or higher: Eloise, Elena, Opal, and Dennis. In 2004, Hurricane Ivan made landfall over 100 miles to the west of the Dam and raised water levels near the Dam to nearly five feet NAVD. The following year, Hurricane Dennis made landfall 76 miles to the west of the Dam. Dennis produced a surge level of nearly four feet NAVD near the Dam. "Hurricane Eloise (1975) made landfall 40 miles west of Panama City and produced water levels 15 ft above normal at Panama City ([citation omitted]). However, the storm passed through the area quickly and does not appear to have significantly affected the dam." Bay County Ex. 1, p. 3 of 9. Hurricane Opal made landfall 86 miles west of Panama City Beach and produced water levels of about 8.3 feet NAVD near the Dam. The storm surge did not overtop the gate structure above the Dam, but the gates were jammed by debris. "[C]hloride levels rose above 50 ppm at the intake pumps and two to three times above normal background levels of 8 to 10 ppm 'almost one mile up-reservoir.'" Id. The levels of chloride were "still well within drinking water limits," tr. 434, of 250 parts-per- million (ppm). Hurricane Katrina made landfall in 2005 more than 200 miles west of the Reservoir with storm surges higher than 20 feet. Katrina produced surge levels of five feet above normal tide levels in Bay County. The rate and amount of saltwater that would enter the Reservoir depends on the height of the storm surge above the Dam. The 100-year surge levels could remain above the top of the Dam for three or more hours. Such an event would introduce approximately 56,200,000 cubic feet or 1,290 acre-feet of saltwater into the Reservoir, even if the Dam were to remain intact (undamaged) and the tide gates remain closed. The salinity levels bay-side of the dam are generally 23,000 to 33,000 ppm. It is reasonable to expect that in the event of a 100-year storm event, much of the storm surge would come directly from the Gulf of Mexico, which has higher salinity levels. With the Dam intact, the introduction of 1,290 acre- feet of saltwater at 33,000 ppm would raise the average chloride concentration in the Reservoir to at least 800 ppm, more than three times the maximum drinking water chloride level of 250 ppm. Assuming the Dam remained intact during a 100-year storm event, freshwater added over time to the lake from the streams and aquifer will dilute the elevated lake chloride level and restore the lake water to a level fit for human consumption. The USGS has measured stream flow at Deer Point Lake and estimated the lake receives an average of 600 million gallons of freshwater per day or 900 cfs. Post-Opal rates were estimated at 1,500 cfs by the District. Given the estimated volume of saltwater introduced to the lake, at an inflow rate equal to the estimated post- hurricane freshwater inflow rate, Bay County's expert, Dr. Miller, estimated it would take at least two weeks to reduce salinity in the lake to drinkable levels. The inflow rate, however, is not certain. Dr. Miller estimated it is reasonable to expect that it could take anywhere from two weeks to two months for the lake to recover from the saltwater intrusion depending on the variation in the inflow rate. Nonetheless, Dr. Miller assumed that the saltwater from storm surge entering the Reservoir would mix in a uniform matter. There would be "quite a bit of mixing in a storm," tr. 485, of saltwater topping the Dam and freshwater in the Dam. But there would also be stratification due to the sinking of denser saltwater and the rising in the water column of freshwater. The above estimations assume the bridge and Dam remain intact during a major storm. The Dam and tide gates act as a solid barrier, protecting the lake from saltwater in the bay. If rainfall rises in the lake prior to a surge, the tide gates would open to release water, becoming vulnerable to damage or jamming by debris as occurred during Hurricane Opal. In the event of storm surge bringing saltwater into the Reservoir, the opening of the tide gates will assist the Reservoir in reaching chloride levels below 250 ppm provided the tide gates operate properly. Dr. Janicki, an NTC/Knight expert, used the Environmental Fluid Dynamics Code hydrodynamic model ("EFDC Model") to simulate the effects of control structures and water withdrawals on the Reservoir. Taking into consideration the factors Dr. Janicki considered relevant, he predicted that chloride levels, in the event of storm surge from a Category 3 hurricane overtopping the Dam, would only exceed 250 ppm, the drinking water standard, for approximately 3.4 days. Dr. Janicki's prediction, however, was flawed. He added too little saltwater to the lake in the event of contamination from storm surge. He assumed that saltwater would be flushed too soon from the Reservoir following contamination. He did not account for the effects of waves in his model. His model was not in accord with data for Hurricane Opal and the chloride levels near the Dam taken by Bay County after Opal. If the bridge and Dam were severely damaged, more saltwater could enter the lake. With severe damage to the Dam, the Reservoir would be exposed to normal tides. Restoration would not begin until the Dam and bridge had been fully repaired. If an event were catastrophic, the Reservoir could be offline for a lengthy period of time. The Basis for the District's Decision Bay County's reliance on the Reservoir for water for the majority of the population led the District in the mid-1980s to encourage the County to obtain a backup supply. After the District turned down several requests for withdrawals of up to 30 MGD for every day of the year, the District ultimately approved what is reflected in the Permit. The justification for the permitted withdrawal is as a backup supply in the event the Reservoir becomes unavailable and for maintenance of the system and recoupment of its cost. With regard to maintenance, the District attempted to obtain information from Bay County as to appropriate withdrawal limitations. The attempts were abandoned. Despite repeated requests by the District, Bay County did not provide the amount of water needed to be withdrawn for maintenance since it did not have "infrastructure specifics," tr. 552, needed to provide the District with a numeric limit. In contrast to the amount needed for maintenance, the District found Bay County to have demonstrated that it needs 30 MGD when the Reservoir is offline and that it is reasonable for the County to need 30 MGD up to 60 days per year. The District determined that the Bay County's application met the requirements for the issuance of a consumptive use permit found in section 373.221(1)(a)-(c). In determining whether approval of the application is in the public interest, the District did not presume that it is in the public interest on the basis of the designation in the 2008 RWSP of an inland groundwater source as an alternative water supply. The District determined that it is in the public's interest for Bay County to have a reliable and safe water supply source as a backup to the Reservoir irrespective of the statutory presumption. Nonetheless, the District maintains in this proceeding that the presumption applies. The District also applied the 18 criteria test for finding a reasonable-beneficial use found in Florida Administrative Code Rule 62-40.410(a)-(r) and determined that the application should be approved. Petitioners' Case in Opposition Washington County (Petitioner in Case No. 10-2983), NTC/Knight (Petitioner in Case No. 10-2984), and Messrs. Murfee and Lapensohn (Petitioners in Case No. 10-10100) filed individual petitions for formal administrative hearing. Although not identical, the petitions share the similarity that, in essence, each alleges that Bay County failed to establish that the proposed use of water meets the statutory and rule criteria for obtaining a permit for the consumptive use of water. For example, among the many issues listed under the heading "Disputed Issues of Material Fact and Law" in Washington County's Petition for Formal Administrative Hearing is "[w]hether Bay County has provided reasonable assurance that its proposed use of water is a reasonable-beneficial use as defined in section 373.019, Florida Statutes." See p. 5 of the Washington County petition. In like fashion, the Washington County petition and the other two petitions allege that the issues are whether Bay County provided reasonable assurance that it meets the other statutory criteria in section 373.223, and the applicable rule criteria that must be met by an applicant in order for the District to issue a permit for the consumptive use of water. The Petitioners' cases focused on five topics: 1) the limitations of the HGL Model; 2) the likelihood of impacts to wetlands and the failure of the monitoring plan to provide reasonable assurance that the District's monitoring under the plan will succeed in detecting harm to wetlands caused by the withdrawals; 3) the reasonable-beneficial nature of the proposed use of the permit, including the vulnerability of the Reservoir; 4) interference with presently existing legal users; and 5) the feasibility of alternative sources. Bay County and the District offered evidence on rebuttal to meet the Petitioners' cases. Surrebuttal was conducted by Petitioners. Modeling Groundwater models "represent what is happening in very complex physical systems." Tr. 1495. Typically, the data used by models is not sufficient to obtain a completely accurate representation. The models depend on specific data points such as information from boreholes or water level measurements that do not reveal everything that is occurring in the complex system and, therefore, are not enough to support completely accurate model predictions. As explained by Dr. Guvanasen, Bay County and the District's expert, in order to reach a representation of the entire system when the data available from boreholes and measurements is insufficient, which is typically the case, the modeler must "extrapolate a lot of information and use other knowledge of other events." Id. The "knowledge of other events" that the HGL Model used included Dr. Scott's knowledge of the karst environment in the Panhandle of Florida, the mapping of Bay and Washington County geology by the Florida Geological Society, and Dr. Upchurch's knowledge of karst topography. The HGL results of the available data and the extrapolations were placed into a mathematical model (the HGL Model) that considered the withdrawals at issue to determine the response of the system to the additional stress of the withdrawals. Mathematical models like the HGL Model lead to "non- unique solutions" in which "no model . . . is exactly 100 percent correct . . . ." Tr. 1635. Modeling results, therefore, are subject to changes as additional data is collected that demand a better representation than the model provided prior to the data's collection and analysis. HGL Modeling for this case provides examples of non- unique solutions. HGL "built a model twice . . . and got two different sets of answers." Tr. 1633. Besides the recommendation that more data be obtained after the first HGL Model results, the model was not satisfactorily calibrated and the model was recalibrated for the Revised HGL Modeling results. Mr. Davis, NTC/Knight's expert, conducted additional modeling work (the "Davis Modeling"). Using the HGL Model and additional data concerning the NTC/Knight Property, Mr. Davis found drawdowns would occur over a similar but greater area than shown in the 2011 Revised HGL Modeling Report. (Compare NTC/Knight Ex. 31 at 2 to Joint Ex. Vol. III, Tab P, Figure 51b(1).) The Davis Modeling drawdowns, moreover, ranged up to 0.8 feet, 60 percent more than the 0.5 feet determined by the second HGL Modeling results. In the area of Big Blue Lake, for example, the drawdown contours produced by the Davis Model were either 0.6 feet or 0.7 feet, 20 to 40 percent more than the 0.5 feet produced by the second HGL Modeling results. See NTC/Knight Ex. 31 at 2. Asked to rank the modeling results between the first HGL Model run, the second HGL Model run, and his own results, Mr. Davis was unable to say which was better because of the sparseness of the data. Mr. Davis opined that he could conduct another "dozen more model runs," but without additional data he would be "hard pressed" to be able to say which run was more accurate. Tr. 1633. In Mr. Davis' opinion there remain significant uncertainties that cannot be resolved without more data. Inadequate data "precludes . . . reasonable assurance as to exactly where the impacts will travel and exactly what the magnitude of those impacts will be . . . ." Tr. 1637. Ecological Impacts Bruce A. Pruitt, Ph.D., was accepted as an expert in hydrology, soil science, fluvial geomorphology, and wetland sciences. Dr. Pruitt mapped the soil types on the NTC/Knight Property using the Natural Resource Conservation Service ("NRCS") Web Soil Survey and tested soil types by hand-auguring in wetland areas. He characterized the various soil-types on the property by drainage class (relative wetness of the soil under natural conditions) and hydraulic conductivity (permeability). Dr. Pruitt ranked the vulnerability of wetlands within the zone of drawdown predicted by the HGL Model as "very high," "high," or "moderate." The categories were based on the presence of threatened and endangered species, Florida Natural Area Inventor ("FNAI") habitat designation, and the hydrology of the wetland. He assumed that if the water level in the Surficial Aquifer were to be drawn down by 0.3 feet or 0.4 feet then the water level in the seepage bogs at Botheration Creek would be drawn down by the same amount. Wetlands with a vulnerability classification of "very high" will suffer an adverse impact at a drawdown level of 0.2 feet; those at "high" at 0.3 feet and those at "moderate" at 0.5 feet in times of drought. Dr. Pruitt calculated wetland acreage by type using the Florida Cover Classification System. He assigned vulnerability rating for the wetlands within the Surficial Aquifer drawdown contours generated by the HGL Model. Based on Dr. Pruitt's calculations, a total of approximately 4,200 acres of wetlands are likely to be harmed by the predicted drawdown. A majority of these wetlands are located in Washington County. Based on Dr. Pruitt's analysis, it is likely that the NTC/Knight Property contains 1,981 acres of "very highly" vulnerable wetlands; 1,895 acres of "highly" vulnerable wetlands; and 390 acres of "moderately" vulnerable wetlands, which are likely to be harmed by the drawdown in times of drought. In reaching his opinion about the quantification of acres of wetlands likely to be harmed, Dr. Pruitt applied the Florida Uniform Mitigation Assessment Method ("UMAM"). UMAM was designed to address compensatory mitigation in dredge and fill cases. It was not designed for consumptive water use cases. In contrast and damaging to its case of reasonable assurance that natural systems will not be significantly affected, the District did not conduct an analysis to determine loss of wetland function resulting from operation under the Permit. Nor did it determine how much drawdown the affected wetlands could tolerate before they were harmed. Rather than conducting such an analysis, the District chose to rely on implementation of the LTEMP to cure any harm that might be down by drawdown to the Surficial Aquifer. The District and Bay County's wetland scientists opined that there might be a less permeable restrictive layer maintaining water levels above the Surficial Aquifer on the NTC/Knight Property. Dr. Pruitt acknowledged that the NTC/Knight Property had scattered clay layers beneath the surface. It is possible, therefore, that some of the wetland areas he identified as subject to harm have restrictive features under them which would hold water and resist dehydration. In his hand-auguring, however, Dr. Pruitt found no evidence of a less permeable layer. The auguring only went to a depth of three feet and would have to go to a depth of two meters to be definitive. Furthermore, Dr. Pruitt found no evidence of a less permeable layer from well drillings. The District and Bay County did not prove that there is, in fact, such a restrictive layer. NTC/Knight collected water-level data from shallow hand-augured wells and stage recorders at the Botheration Creek Hillside Seepage Bog. The data demonstrate that the water level in the shallow, hand-augured wells at the Botheration Creek Bog is a direct reflection of the level of the Surficial Aquifer. The Surficial Aquifer at the Botheration Creek Bog was approximately 95.5 feet NAVD, over 35 feet higher than at Big Blue Lake and the highest measured level south of Big Blue Lake. The Botheration Creek Hillside Seepage Bog is located between the 0.3 and 0.4 foot Surficial Aquifer drawdown contours predicted by the HGL Model. Based on the HGL Model, the District and Bay County's experts estimated the Surficial Aquifer drawdown at this bog would be 0.39 feet. During the approximately one year of NTC/Knight's water-level recording, a drawdown of 0.39 feet would have reduced the frequency and duration of inundation at this bog significantly. For example, an analysis of the approximately one year of data collected by NTC/Knight shows that at the intermediate water-level recorder location in the bog, one 29-day period of inundation would have been reduced to just nine days and that further down gradient in the bog, none of the five instances when the bog was inundated would have occurred. This is consistent with Dr. Pruitt's vulnerability assessment, which finds that the vulnerability of the hillside seepage bogs to drawdown is "very high," that is, these systems are likely to be harmed in times of drought at drawdown levels in the Surficial Aquifer of 0.2 feet or greater. A drawdown of 0.3-0.4 feet in the Surficial Aquifer at the hillside seepage bog along Botheration Creek increases the likelihood that the hillside seepage bogs along Botheration Creek will be lost in times of drought. The littoral shelves of Sand Hill Lakes typically occur along a low gradient above the normal low water level of the lakes. The existence of the shelf promotes seepage sheet flow along a wide expanse. The drawdown will change the flow from seepage sheet flow to concentrated stream flow within gullies. The erosion and increased sedimentation produced by the greater force of the water in the gullies will cause a loss of area needed by certain seepage dependent plants and animals. If Big Blue Lake were to be drawn down by the 0.71 feet predicted by Mr. Davis, the location of the seepage would move down 0.71 feet vertically and an estimated 24.5 feet horizontally. The result would be a reduction in the littoral shelf conducive to seepage-dependent plant communities by approximately nine acres. The impact would likely be significant since the seepage zone is in an area of "very high" vulnerability according to Dr. Pruitt. Between October 2010 and July 2011, NTC/Knight took four measurements of water level at "BCS-01," a stage recorder in Botheration Creek. The measurements showed the water level in the creek at that point to be 0.1 to 0.32 feet. NTC/Knight also sampled for taxa of macroinvertebrates in the reach of the creek. NTC/Knight identified 46 taxa, including mussels and six long-lived taxa. The presence of the long-lived taxa and mussels indicate that the reach of the creek in the vicinity of the stage recorder should be considered to be a perennial stream. Botheration Creek is high-quality water and, as shown by NTC/Knight's sampling, it contains a diverse mix of aquatic invertebrates and fish. A drop in the level of Botheration Creek of 0.2 feet predicted by the HGL Model would have caused the creek to go dry at BCA-01 during three of the four dates on which the water level was measured. Such a drop would convert the reach of the creek in the vicinity of the stage recorder from a perennial to an intermittent stream and would eliminate the reach's viability for long-lived taxa. Similarly, upstream reaches that are intermittent would become ephemeral (streams that flow only during periods of high rainfall). If the Wellfield becomes fully operational as allowed by the Permit, there will be a reduction in the Surficial Aquifer at Botheration Creek of between 0.2 and 0.3 feet. The reduction in the aquifer will reduce flow in Botheration Creek, reduce the volume downstream, including in Pine Log Creek, and reduce out-of-bank flood frequency and duration. The result will be a reduction in nutrients delivered downstream and to the floodplain to the detriment of plants and animal life that depend on them. Additionally, other reaches of the creek that have perennial flow will be converted to intermittent streams and reaches that are intermittent will become ephemeral. The result will be the elimination of plant and animal species currently living in these portions of the creek. The impact of the HGL Model predicted drawdown to steepheads depends on the individual steephead and the drawdown contour at its location and the amount of rainfall. Four steepheads on the NTC/Knight Property could suffer impacts similar to the impact at Russ Steephead to which Dr. Pruitt assigned a high probability of impact. Russ Steephead is located on the NTC/Knight Property above Russ Pond. NTC/Knight installed Surficial Aquifer wells at Russ Steephead between the HGL Model's predicted 0.5 and 0.6 foot Surficial Aquifer drawdown contours. NTC/Knight also installed a stage recorder just downstream from the steephead. During drought, NTC/Knight observed a loss of flow from the sidewall seepage areas and in the Russ Steephead Stream. If the Surficial Aquifer at Russ Pond were to be drawn down by 0.5-0.6 feet, the sidewalls of the Russ Steephead Stream and the stream itself would lose flow in times of drought. The loss of flow would lead to oxidation and loss of organic materials in the stream channel and flood plain, resulting in soil subsidence. If the water level at the terminus of the Russ Steephead Stream were drawn down, headward down cutting in the stream channel would be induced. In such a case, in the words of Dr. Pruitt, "there is a high probability that if drawdown occurs and . . . over a long period of time," the process will make the steephead "look more like a gully . . . ." Tr. 2120. The drawdown will also reduce the frequency and duration of inundation of the sphagnum bogs in the four steepheads likely to be affected by the drawdown. The bogs and the associated animals that depend upon them would be lost. Dr. Means identified a number of temporary ponds within HGL's predicted drawdown of the Surficial Aquifer. Nine were between the 0.3 and 0.6 foot drawdown contour, and two were between the 0.6 and 0.7 foot drawdown contours. These ponds and plant and animal communities dependent upon them would likely be harmed by the drawdowns. Mr. Cantrell offered testimony to rebut the Petitioners' case on wetland impacts. His testimony was based on an evaluation of aerial photography, site visits to the Wellfield, and a one-day trip to the NTC/Knight Property. It is Mr. Cantrell's opinion that if the NTC/Knight Property were to drain, it would be because of a surface water drainage system, such as ditching, not because of drawdown in the Surficial Aquifer caused by operation of the Wellfield. Mr. Cantrell's opinion is that because the Area has been subjected to a wide range of fluctuations in water levels and the wetland systems have survived, operation of the Wellfield will not have significant impacts. Mr. Cantrell's opinion, however, overlooks the effect of constant drawdown during times of severe drought. That wetlands have survived severe drought in the past does not mean they will survive severe drought conditions exacerbated by drawdown caused by operation of the Wellfield. Monitoring Special condition 19 of the Permit requires Bay County to implement the LTEMP after the Permit is issued. The LTEMP requires Bay County to establish a monitoring network, but does not provide the location of any particular monitoring site. Sites identified in the LTEMP are recommended, but the ability to use a particular site is dependent on field verification of suitability and authorization by the landowner. Over half the area designated in the LTEMP from the HGL Model's projected 0.5 foot drawdown in the Surficial Aquifer is located on the NTC/Knight Property. It will be necessary, therefore, to include sites on the NTC/Knight Property in the ultimate environmental monitoring network. The LTEMP's recommended sites do not include monitoring of some of the most susceptible wetland systems: temporary ponds, the Botheration Creek hillside seepage bogs, and the perennial headwaters of Botheration Creek. Without this monitoring, the LTEMP will be unable to detect whether these systems are harmed by withdrawals. The Permit and LTEMP require no more than one-year of baseline data to be collected prior to initiation of water withdrawals. The proposed monitoring time is inadequate to create a sufficient record for use in determining whether a reduction in water levels is attributable to water withdrawals or natural phenomena, such as drought. Baseline monitoring should be conducted for a sufficient duration to ensure that a full range of wet and dry years is captured. The LTEMP describes the types of data that are to be collected. A missing component is sampling for frogs, salamanders, and other amphibians that are sensitive to changes in hydrologic regimes and which depend upon infrequent periods of inundation in order to breed. This type of faunal sampling is particularly important in the temporary ponds and seepage environments. Without sampling for the presence of these species, the LTEMP will be unable to determine whether these populations have been harmed by withdrawals. The LTEMP includes a number of "triggers," that if tripped, require the preparation of an auxiliary report. A number of these triggers make reference to changes in water levels at the level of "significant deviation," an undefined term. More importantly, the LTEMP fails to require any statistical analysis. Without it, the LTEMP will be inadequate to establish whether a reduction in water levels is caused by water withdrawals or another cause. Similarly, other triggers lack sufficient detail to determine when they are tripped, such as those that refer to downward movement of plants. Finally, even if one of these triggers is tripped and an auxiliary report is prepared, nothing in the Permit or LTEMP sets forth the circumstances under which withdrawals would need to be curtailed and by what amount. The purpose of the LTEMP is to determine whether withdrawals are causing harm to the wetlands within the vicinity of the Wellfield. The LTEMP fails to provide reasonable assurance that it will succeed in achieving its purpose. Reasonable-Beneficial Use Use if the Reservoir is Unavailable In the event of Reservoir unavailability, Bay County is likely to need much less than 30 MGD. The need is likely to fall between 7.42 MGD and 9.71 MGD for the current population. In 2013, the need is likely to fall between 9.40 MGD and 12.29 MGD. See NTC/Knight Ex. 5, p. 4 of 4. The Permit, however, does not limit Bay County to emergency or backup use. While Bay County might voluntarily limit withdrawals to emergency use or backup supply, it has unfettered discretion to determine what constitutes an emergency or the necessity for a backup supply. The Permit is also not restricted to essential uses. Authorization of 30 MGD provides more than Bay County's current average daily demand for potable water. If the Permit restricted the use to essential uses, the authorization would be far less than 30 MDG. The District commissioned King Engineering to assist in development of a "Coastal Water Systems Interconnect Project" (the "Interconnect Project"). On average, the utilities subject to the Interconnect Project estimated that 42 percent of the average daily demand is dedicated to essential uses with the remaining 58 percent going to non-essential uses. Consistent with the estimate, the Project set a target of 50 percent of average daily demand to be allowed for use in an emergency. None of the information from the Interconnect Project, however, was used by the District in setting the limits of withdrawal in the Permit. b. Daily Use Bay County claims the 5 MGD annual average allocation under the Permit is needed for several reasons, principally the maintenance of pumps. Bay County's justification for 5 MGD is found in testimony from Mr. Lackemacher and a document he authored entitled, "Confidential Draft for Internal Use Only 5 MGD Pumping Rate" (the "Lackemacher Confidential Draft"), admitted as Bay County Ex. 24. Mr. Lackemacher's testimony follows: A. The fact is that there are no absolute knowns when we're talking about what needs to be. Q. What do you mean? A. Well, here we have a document [Bay County Ex. 24] where I talk about rationalization for 5 million gallons a day, why we would need it, mechanical reasons, financial reasons, regulatory reasons. I always felt that it was very difficult to justify a number. I don't know. We haven't designed the system. We haven't got all of the wells in. We don't know what their specific yields are. There's unknowns here. So do we need 2 million gallons a day or 5 million gallons a day? I don't know. I don't know that. But here is the rationalization for 5 million if that's in fact what we need. We may very well find out that we don't need 5 million gallons a day. Q. Is that because you don't know the precise locations of the well and how they're going to be piped and distributed? A. That's absolutely true. Q. Well, did you in this report, Exhibit 24, did you make some reasonable assumptions? A. I based it on some of the values as you discussed or as I pointed out earlier from Hatch Mott MacDonald's preliminary design. * * * Q. And do you feel confident that your analysis supported that in the area of 5 million gallons a day is what would be needed to operate the wellfield? A. Yes. And that's why the paper was generated that [is] a justification for 5 million gallons a day, here's what we think we would need. Tr. 209-10. The Lackemacher Confidential Draft is a one-page, written justification for the 5 MGD. Based on the Hatch Mott McDonald Report, see tr. 210, it considers regulatory, mechanical and financial factors. It is not supported, however, by engineering analysis. Any financial analysis found in the Hatch Mott McDonald Report, moreover, is far from complete. The factors taken into consideration are recited in the most general of terms. For example, of four such factors, the document lists the second as: "All water pumps are designed to run - turning pumps on and off is not the best situation for the overall electrical efficiency or the mechanicals of a pump." Bay County Ex. 24. Consistent with Mr. Lackemacher's testimony, the document concludes that the amount of water needed to run each well is unknown. The financial justification is based on costs shown in the Hatch Mott MacDonald Report for construction and operation of 22 wells, ten more wells than are contained in the Wellfield and without any analysis of revenue to recoup the costs. The financial justification is a bare conclusion on the part of Mr. Lackemacher: We cannot afford to operate a well field at a financial loss, based on this fact alone we would have to pump a minimum of 4.49 MGD. Combined with the fact that we don't know what volumes of water have to be turned over to ensure water quality 5 MGD seems quite reasonable. Bay County Ex. 24. The Lackemacher Confidential Draft is dated May 17, 2011. It was not part of Bay County's Application nor was it submitted to the District prior to the decision to issue the Permit. Although the District attempted to obtain information from Bay County about what was needed for maintenance, Bay County did not provide it. As Mr. Gowans testified, "[t]hen I finally told staff, [s]top asking, we're not going to get the numbers . . . ." Tr. 552. The District performed no analysis to determine the minimum amount of water needed to maintain the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Phillip Waller, an engineer accepted as an expert in the design and construction of potable water systems, including groundwater wells, surface water, and transmission and distribution of drinking water. Mr. Waller testified that if the wells were connected to a central treatment system, there would not be the need to flush the pipeline for disinfection prior to use of the well in an emergency. Only 2.4 million gallons per year or 6,500 gallons per day would be needed to maintain optimum operating conditions, an amount far less than 5 MGD. Mr. Waller's experience when groundwater is used as a backup, moreover, is that they are operated periodically. While prudent to periodically operate backup wells especially in advance of hurricane season, vertical pumps in wells, unlike horizontal pumps, do not have a need for frequent operation because of even force distribution. They certainly do not need to be continuously operated. "In fact, wells routinely are idle for months at a time." Tr. 1123. Interference with Existing Legal Users In its Revised Staff Report dated July 18, 2011, the District wrote: Nearby Users: Under the most intensive pumping activity, drawdown in the Upper Floridan Aquifer is predicted to be approximately 15 feet in the vicinity of the nearest private wells. Water level declines of this magnitude may cause water levels to fall below the level of the pump intake in some privately-owned wells. Joint Ex. Vol. IV, Tab Q, p. 4. The District's high estimate of the number of wells used by existing legal users that might suffer impacts approaches 900. The exact number or whether any existing legal users would be likely to suffer impacts was not proven. Alternatives Groundwater wells, if installed and attached to the fitting in the existing transmission line that delivers water from the Pump Station to the Water Treatment Plant, could serve as backup to the Reservoir. Bay County did not conduct a study of whether groundwater in the area of the transmission line was adequate to serve as an alternative. Mr. Waller, on behalf of NTC/Knight and Washington County, on the other hand, testified that the transmission line could support ten wells with a capacity of 10 MGD and could be constructed at a cost of $12 million, far less than the Wellfield. The area of the transmission line is in an area identified by the District as acceptable for the creation of potable water wells. The area does not present a significant risk of saltwater intrusion if not used continuously. The water meets the drinking water requirements for the Department of Environmental Protection and the Department of Health. The existing transmission line alternative is located near the existing raw water supply line which minimizes the need for additional piping. There is sufficient length along the existing raw water pipeline to accommodate ten wells. The existing transmission line alternative, therefore, has significant potential to succeed as a water supply backup to the Reservoir. NTC/Knight and Washington County, through Mr. Waller, also proposed another alternative: an intake at Bayou George. Near Highway 231, the main pipeline from the intake would run along public right-of-way. North of the existing intake in Williams Bayou and three miles north of the Dam, the proposed intake would be less susceptible to contamination from storm surge. Neither Bay County nor the District presented a thorough analysis of any alternative to the Wellfield. In contrast, NTC/Knight and Washington County presented the testimony of Mr. Waller that there are two alternatives that could be constructed at much less cost than the Wellfield and that have significant potential of providing backup supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order that denies the application of Bay County for the individual water use permit at issue in this proceeding. DONE AND ENTERED this 26th day of July, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2012.
The Issue The issue in this proceeding is whether the District should approve FRI's consumptive use permit application, no. 2-019-0012AUR, pursuant to Chapter 40C- 2, Florida Administrative Code The FRI is seeking permission to withdraw an annual average daily rate of million gallons per day (mgd) of water and 762.85 million gallons per year of ground water for hydraulic dredging, cleaning and purification of sand at the Goldhead Sand Mine. Subject to certain limiting conditions to be set forth in the FRI's consumptive use permit, the water is proposed to be produced from three Floridan aquifer wells. District proposed to grant the permit application which was challenged by LBCA, resulting in the formal administrative proceeding. LBCA challenged the issuance of the permit to FRI on the basis of the FRI's alleged failure to comply with the applicable requirements of Chapter 3V3, Florida Statutes (E.S.), and Chapter 40C-2, Florida Administrative Code (F.A.C.), and other applicable law. RULINGS ON EXCEPTIONS TO FINDINGS OF FACT LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Finding of Fact 2 that a necessary component of FRI's operation is its withdrawal of approximately 2.09 mgd of ground water for the production of sand. The 2.09 mgd is the average daily usage rate to who the parties stipulated prior to the hearing. The maximum daily usage rate is 3.75 mgd. However, FRI cannot exceed 762.5 million gallons for the year which is an average of 2.09 mgd. (Prehearing Stip. pp. 1,9). In the LBCA Proposed Recommended Order paragraph 25, the LBCA states that the operation "necessitates FRI's pumping allocation of an average daily 2.09 million gallons of water from the Floridan aquifer." Additionally, LBCA acknowledges in its Exception No. 2 that it is "known that approximately 2 mgd are pumped into the system." If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the finding is supported by competent substantial evidence. (T. 41-42, 104, 913-914). LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Findings of Fact 8 and 28 that the receiving water from the mine site is primarily the surficial aquifer which recharges the downgradient lakes and that the surficial aquifer recharge will result in a positive or immeasurable effect on the lakes. The exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings supported by evidence and reweighing evidence. Tampa Wholesale Liquors, Inc. v. Div. of Alcoholic Beverages and Tobacco, 376 So.2d 1195 (Fla. 2d DCA 1979). The decision to believe one expert over another is left to the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club v. Orlando Utility Comm., 436 So.2d 383, 389 (Fla. 5th DCA 1983) This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990). If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Section 120.57(1)(b)10., Fla. Stat.; Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). This exception is rejected because the findings are supported by competent substantial evidence. (T. 105, 120-129, 146, 170, 187-190, 208-209, 235, 248, 256-257, 972-973, 1085-1093, 1139). LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Finding of Fact 11 that the aquifer characteristics in the Floridan aquifer beneath and around the mine site are relatively uniform. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 180, 926-927). LBCA Exception Number 4 The LBCA takes exception to a mischaracterization of the hearing officer's Finding of Fact 13 regarding lake leakance by stating that the hearing officer found that some of the lakes at issue do not have leakance to the Floridan aquifer. In fact, it is contextually clear that the Hearing Officer was referring to "many of the lakes within the region." This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 77-80). LBCA Exception Number 5 The LBCA takes exception to the hearing officer's Finding of Fact 16 that very little, if any, of the groundwater flowing into the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. In making its argument, LBCA inaccurately attributes testimony to FRI witness Fountain when the referenced testimony was testimony of LBCA witness Boyes. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1145-1146). LBCA Exception Number 6 The LBCA takes exception to the hearing officer's Findings of Fact 22 and 55 that the data collection effort of FRI and the District was far more extensive than is normally conducted for a mine of this size and that sufficient site-specific information was developed to be able to determine the effects of the proposed use of water at the mine operation. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The findings are supported by competent substantial evidence and therefore the exception is rejected. (T. 103, 201, 238, 918-919; FR Ex. 5). LBCA asserts that FRI did not evaluate the "worstcase" scenario in order to establish permit entitlemet LBCA provides no legal citations to support its exception. LBCA's assertion lacks legal as well as factual support. LBCA has criticized FRI's aquifer performance test and modeling effort without presenting the elusive "worstcase scenario" which presumably would show impacts greater than those modeled by FRI. LBCA seeks to impose a burden of proof which is insupportable in law. It is not FRI's burden to show a violation of the criteria in Chapter 40C-2, Fla. Admin. Code, is a scientific impossibility, only to show that the non-occurrence of such violation is reasonably assured by the preponderance of the evidence in the proceeding. The Corporation of the President v. SJRWMD and City of Cocoa, Case Nos. 89-828, 89-751 (SJRWMD Dec. 13, 1990), aff'd, 590 So.2d 427 (Fla. 5th DCA 1991). An agency cannot assume the worst-case scenario unless that condition is reasonably foreseeable. Florida Audubon Society, supra..; Rudloe and Gulf Stream Specimen Co. v. Dickerson Bayshore, Inc., 10 F.A.L.R. 3426 (Florida Department of Environmental Regulation, June 8, 1988). As delineated in FRI's response to this exception, FRI and the Distract presented evidence of numerous investigations regarding this application, including testing and analyses of the impact of withdrawals at greater than the average and maximum daily pumping rates. (See Record citations on pp 17-20 of FRI's Response to Exceptions; T. 115-116, 126, 176-177, 918- 920). LBCA failed to present any citation to the record where it presented testimony evincing that another scenario which would result in greater impacts than those predicted by the applicant were reasonably like to occur. LBCA's speculation that another undefined scenario of pumping would show greater impacts was rejected by the hearing officer. The applicant has provided reasonable assurances with regard to the effects of the proposed withdrawal. LBCA Exception Number 7 The LBCA takes exception to the hearing officer's purported inference in Finding of Fact 23 that the aquifer performance test (2T) measured impacts significantly greater than could be expected to occur under "worst case" conditions as a result of the mining operation. The finding actually states "the (aquifer performance) test measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 mgd." As discussed in the ruling on exception no. 6, LBCA's assertion of a "worstcase scenario" has factual support in the instant case. The applicant is required to provide reasonable assurance that the proposed use is reasonable, beneficial, will not impact existing legal uses and is consistent with the public interest. The applicant is not required to evaluate LBCA's unspecified worst case scenario or prove the use will not cause any impacts. Florida Audubon Society, supra..; Rudloe, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-115, 141, 920). LBCA Exception Number 8 The LBCA takes exception to the hearing officer's Finding of Fact 23 that no changes in the lake levels are attributable to the pumping at the mine. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. In Finding of Fact No. 24, the hearing officer found that the effects of pumping were not distinguishable from the declines which occurred before and after the ADT test. Therefore, his conclusions are not inconsistent as alleged by the LBCA. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 120-130, 146, 759, 928- 933, 942, 944- 948, 1015-1016, 1122-1123, 1168; Dist. Ex. 5). LBCA Exception Number 9 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the actual effects of the pumping will be approximately one half of the observed amounts of the 2T test on an average pumping day. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 113-117, 923-996; Dist. Ex. 5). LBCA's claim that this finding is irrelevant since only a "worstcase" scenario is pertinent is likewise rejected. Initially, it is noted that LBCA cites no legal support for its arguments. Furthermore, there is no requirement in the District's rules governing consumptive use which mandates consideration of only "worstcase" scenarios. Furthermore, an agency cannot assume worst case scenarios unless they are reasonably foreseeable, which determination is a case by case factual issue. See Florida Audubon Society, supra., Rudloe, supra.. LBCA Exception Number 10 The LBCA takes exception to the hearing officer's Finding of Fact 26 that Dr. Stewart testified that the Floridan aquifer is rarely completely homogenous and isotropic but that he and other modelers regularly make that assumption. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding supported by competent substantial evidence and therefore the exception is rejected. (T. 738). LBCA Exception Number 11 The LBCA takes exception to the hearing officer's Finding of Fact 27 that the maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 129, 182). For the same reasons stated in the ruling on exceptions no. 9 and 7, the LBCA's claim regarding irrelevancy is rejected. LBCA Exception Number 12 The LBCA takes exception to the hearing officer's Finding of Fact 28 that a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance and that the drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. The LBCA is simply rearguing their case. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 118-120, 129, 237, 706-708, 758). LBCA's irrelevancy argument is rejected for the reasons stated in the ruling on exceptions no. 9 and 7. LBCA Exception Number 13 The LBCA takes exception to the hearing officer's Findings of Fact 42 through 54 as being conclusion of law rather than findings of fact. The LBCA does not cite to the record or make legal argument to support the exception as required by Rule 40C-1 .564, F.A.C. Without said citation or argument, the exception is rejected. Corporation of the President, supra.. The hearing officer's recitation of the individual criteria of Rules 40C-2.301 (2), (4) and (5), F.A.C., serve as introduction to and reference for the specific findings with regard to each criterion to provide clarity in the order. To the extent that expert witnesses presented testimony on the criteria and how the applicant satisfied the criteria through proof, the elements are findings or fact. These additional reasons also serve as ground for rejection of the exception. LBCA Exception Number 14 The LBCA takes exception to the hearing officer's Finding of Fact 56 that LBCA's referenced exhibits do not correlate with normal conditions when compared with longer periods of time. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. In addition, the hearing officer ultimately did not admit the exhibits and therefore, the Finding of Fact becomes irrelevant. (T. 1152-1168, 411-416, 930- 933, 948, 969; FR Ex. 50A, SOB). Contrary to Rule 40C-1.564(3), F.A.C., LBCA fails to state wish particularity citations to the record or legal basis as required by Rule 40C-1.564, F.A.C., in support of its attack on finding 56 and its inferential attack on findings 23, 24, 30, 31, 32, 33, 34 and conclusions 62 and 63. The entire exception is rejected. LBCA Exception Number 15 The LBCA takes exception to the hearing officer's Conclusion of Law 66 that LBCA's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83 have limited probative value to the extent it is predicated on FRI's rebuttal testimony. The LBCA argues that the rebuttal testimony is of low probative value. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. This exception goes to the weight of the evidence and inferences drawn there from by the hearing officer. The finding is supported by competent substantial evidence and, therefore, the exception is rejected. (T. 1152-1168, 411-416, 930-933, 948, 969). Exception is also taken to Findings of Fact Nos. 32, 36, and 56 and Conclusion of Law 62 because LBCA argues that the testimony on which they are based exceeded the scope of direct examination and the LBCA was not given the opportunity to object. The correct time to object was when the alleged improper testimony was elicited. The LBCA did not object to preserve the record and therefore, has waived the objection. Section 90.104(1)(a), Fla. Stat. Finally, LBCA asserts that it was denied the opportunity to present rebuttal testimony in violation of Section 120.57(1)(b)4., Fla. Stat. To the contrary, LBCA was not denied the opportunity to present rebuttal testimony but failed to request surrebuttal and consequently failed to preserve any denial of that request by an objection on the record. (T. 1188-1190). Since LBCA never requested surrebuttal, the hearing officer never denied that request and, therefore, LBCA's argument is without merit. Furthermore, pursuant to the order of presentation under Rule 40C- 1.5434(1), F.A.C., which is followed in a permitting proceeding (applicant, petitioner, district), LBCA's entire case tended to be in the nature of rebuttal to the applicant's case. While the hearing officer did state that he did not ordinarily allow surrebuttal (T. 1169) before the rebuttal testimony was concluded, LBCA never affirmatively requested to present surrebuttal evidence or testimony nor did LBCA proffer any such evidence or testimony. Since no proffer was made of any relevant surrebuttal testimony which LBCA contends was excluded, and no objection was made in the record to LBCA's belief that it was prohibited from adducing surrebuttal evidence, it is now precluded from complaining about this perceived adverse ruling. King v. Estate of King, 554 So.2d 600 (Fla. 1st DCA 1989); Holmes v. Redland Construction Co., 557 So.2d 911 (Fla. 3rd DCA 1990); Roberts v. Hollway, 581 So.2d 619 (a. 4th DCA 1991); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3rd DCA 1980). The exception is rejected. LBCA Exception Number 16 The LBCA takes exception to the hearing officer's Findings of Fact 17, 18, 19, 20, 21, 52 and 55 and Conclusions of Law 62 and 63. Findings of Fact 18, 19, 21, 52 and 55 and Conclusions of Law 62 and 63 are discussed in subsequent exceptions and therefore arc not addressed in this ruling on exceptions. LBCA's exception to Finding of Fact 20 fails to state with particularity any supporting citations to the record or legal argument as required by Rule 40C- 1.564 (3), F.A.C., and is therefore, rejected. LBCA takes exception to Finding of Fact 17 that the hearing officer incorrectly refers to three distinct water quality studies. In fact, the hearing officer actually refers to "numerous analyses" LBCA also objects to the reference to "unknown persons" in the finding and apparently to the statement: "They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels of certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992." Clarification that HRS personnel conducted sampling in 1989 and 1992 is provided; however, since these personnel were never specifically named, to that extent the hearing officer's reference to "unknown persons" is accurate. (T. 1035, 379). The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 102-103, 130- 133, 451, 1023-1037, 1041- 1048, 1151-1152). LBCA Exception Number 17 The LBCA takes exception to that part of the hearing officer's Finding of Fact 18 that states: "This theory was predicated on... an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond." LBCA fails to prove any supporting transcript citations in violation of Rule 40C- 1.564 (3), F.A.C. In Finding of Fact 18, the hearing officer reached the conclusion that none of the water quality samples taken from the mine site indicate a violation of state water quality standards. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., supra.. This Board cannot judge credibility of witnesses or otherwise interpret the evidence to reach a desired result. The finding is supported by competent substantial evidence and the exception is rejected. (T. 133, 575, 1024-1025). LBCA Exception Number 18 The LBCA takes exception to the hearing officer's Finding of Fact 19 by arguing that water quality on the mine site says nothing about off site impacts and positing that the finding is predicated on certain speculation. LBCA offers no helpful record citations supporting these allegations. Expert testimony established that water quality sampling by FRI and the District of the surficial aquifer at the locations chosen was where water quality impacts would be most likely to be revealed and consequently was a conservative approach. (T. 133, 144, 1029-1030, 1061, 1073). This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 130-139, 141-144, 575-576, 1028-1031, 1061-10 65, 1073, 1136-1139). LBCA Exception Number 19 The LBCA takes exception to the hearing officer's Finding of Fact 21 by stating that it misleadingly implies that 212 homes were tested for water quality by HRS. To the contrary, the hearing officer's finding states "12 out of 212 homeowners" (emphasis added) south of the mine site were tested, not 212. In addition, the exhibits referenced do not reflect the testing of 212 homes. The finding is supported by competent substantial evidence and the exception is rejected. (T. 167-168, 379, 990, 1036-1037, 1041, 1048-1050, 1052-1053). LBCA Exception Number 20 The LBCA takes exception to the hearing officer's Finding of Fact 21 on the basis that it is a legal conclusion which misrepresents and misapplies the state water quality standards. However, LBCA cites no authority or record citation for the argument as required by Rule 40C-1.564(3), F.A.C. The finding actually states "with the exception of one well... the water from the homeowners' wells did not exceed background water quality for iron and manganese"; clearly, this is a factual statement. This exception, under the guise of an unsupported legal argument, goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial, and uncontroverted, evidence which, incidentally, includes explanation and citation to the relevant exception/standard. Furthermore, the parties stipulated that official recognition was taken of chapter 17-520, F.A.C. The exception is rejected. (T. 1034, 1041, 1077-1078; Prehearing Stip. p 12; Rules 17- 520.420(2) and 17-520.200(11), F.A.C.) LBCA Exception Number 21 The LBCA takes exception to the hearing officer's Finding of Fact 21 that the 1989 water quality samples by HRS were unreliable because of the uncertainty regarding the sampling technique protocol. This exception erroneously states there was no evidence of sampling protocol used by HRS. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 1039-1049). LBCA Exception Number 22 The LBCA takes exception to the hearing officer's Finding of Fact 52 that the receiving body of water will not be seriously harmed, by characterizing the finding as being predicated on an unproven theory that the surficial aquifer receives all groundwater discharged from one site. LBCA has failed to read the entire finding which clearly reveals that the hearing officer did not confine his consideration to the surficial aquifer. He found that water quality standards would not be violated in the surfical aquifer, where the highest concentrations of any potential contaminants would appear, then they would not be violated in any intermediate aquifer similarly, no violations would occur in one Floridan aquifer. The decision to believe one expert over another is the role of the hearing officer, and the decision cannot be altered absent a complete lack of competent substantial evidence from which the finding could be reasonably inferred. Fla. Chapter of Sierra Club, supra.. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 105, 141-142, 1025-1030, 1034-1035). LBCA Exception Number 23 The LBCA takes exception to the hearing officer's Finding of Fact 55 that water quality sampling was collected to evaluate a water budget for the dredge pond. In their responses to this exception, FRI explicitly notes it has no response to this exception and District counsel concedes that although water quality samples were taken from the dredge pond and a water budget was calculated for the dredge pond, these two procedures were not linked to one another. The testimony of FRI witnesses is that water quality sampling and data to determine the water budget for the dredge pond were performed. (T. 76, 103). Counsel for FRI and the District have stipulated that the testimony does not support the finding that the water quality samples were used to evaluate the water budget. Since, as stipulated, this portion of the hearing officer's finding is not supported by any evidence in the record, the exception is accepted. LBCA Exception Number 24 The LBCA takes exception to the nearing officer's Finding of Fact 55, arguing that the applicant did not perform an environmental assessment of Lake Brooklyn, and thus cannot fairly draw any conclusions about its operation's impact on that lake. The Finding of Fact describes the site-specific information which supports the application. The pertinent part of the finding states: "FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes." To the extent Lake Brooklyn is encompassed by use of the term "area lakes", the existence of an assessment of the impacts to Lake Brooklyn is supported by expert testimony. (T. 281, 899). Additionally, the finding is otherwise supported by competent substantial evidence. (T. 266-280). The exception is rejected. LBCA Exception Number 25 The LBCA takes exception to the hearing officer's Finding of Fact 31 which states in pertinent part: "petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring." LBCA is essentially complaining that the entirety of Dr. Stewart's testimony should be credited not just a portion. The role of the hearing officer is to consider and weigh all the evidence, resolve conflicts and judge credibility of the witnesses. The hearing officer apparently did not view all of Dr. Stewart's testimony in the same manner as LBCA's attorney; such is his legal prerogative. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 784-786, 145- 146, 232-233, 285-286, 288-289, 897-898, 1085). LBCA Exception Number 26 The LBCA takes exception to the hearing officer's Finding of Fact 24 that the rate of decline (in Spring, White Sands and Gator Bone Lakes) during the APT test was not distinguishable from the declines which occurred before or after the test. LBCA provides no record citations to support its argument that since the hearing officer rejected its use of certain APT data in an attempted correlation between pumping and Lake Brooklyn levels, that all the APT data was entirely discredited and could have no value in an analysis regarding Spring, White Sands or Gator Bone Lakes. If a hearing officer's finding is supported by any competent substantial evidence from which the finding could reasonably be inferred, then it cannot be disturbed. Berry, supra.. This exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. The finding is supported by competent substantial evidence and therefore the exception is rejected. (T. 941-948, 1015-1016, 1123, 1168). RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW LBCA Exception Number 1 The LBCA takes exception to the hearing officer's Conclusion of Law 62 and 63 and Findings of Fact 42 through 54 (which LBCA alleges should be conclusions of law) that FRI has established its entitlement to the permit. LBCA argues that the applicant failed to present sufficient information about conditions at Lake Brooklyn. LBCA's numerous "factual" statements in this exception are unsupported by record citations. The burden of proof in an administrative hearing falls initially upon the party asserting the affirmative of an issue, i.e. entitlement to a permit. Rules 40C-1.545 and 40C-2.301(7), F.A.C.; Capeletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The party must prove its case by a preponderance of the evidence. Florida Audubon Society v. South Florida Water Management District, 13 F.A.L.R. 4169 (undated). The applicant's burden is to establish reasonable assurances that the proposed use is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. Section 373.223, Fla. Stat. The burden of reasonable assurances is not one of absolute guarantees. City of Sunrise v. Indian Trace Community Dev. Dist., 14 F.A.L.R. 866 (January 16, 1992). The impacts which are reasonably expected to result from issuance of the permit must be addressed, not potential impacts or those that might occur Hoffert v. St. Joe Paper Co., 12 F.A.L.R. 4972 (December 6, 1990); Chipola Basin Protective Group Inc. v. Florida Chapter of Sierra Club, 11 F.A.L.R. 467 (Department of Environmental Regulation, December 29, 1988); Florida Keys Citizen Coalition v. 1800 Atlantic Developers, 8 F.A.L.R. 5564 (Department of Environmental Regulation, October 17, 1986). Once the party asserting the affirmative, FRI, has presented its prima facia case, the burden shifts to the LBCA to present contrary evidence. 1800 Atlantic Developers, supra.; Hoffert, supra.. LBCA cites Booker Creek Preservation, Inc. v. Mobil Chemical Co., 481 So.2d 10 (Fla. 1st DCA 1986) in support of the exception. In Booker Creek, the Court held that additional testing, beyond that offered by the applicant, should have been done before the permit could be issued. Booker Creek was limited to its unique set of facts by the case of Berry v. Dept. of Env. Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988). The Berry Court, in dealing with a dredge and fill permit, refused to extend the Booker Creek holding to such permits, noting that the permit under consideration in Berry, was not a pollutant discharge permit. The permit in issue here also is not a pollutant discharge permit. More importantly, like the applicant in Berry, FRI offered evidence of extensive testing and analysis regarding where water comes from and goes to at the mine site and in the surrounding vicinity. Finding of Fact No. 55. LBCA incorrectly argues that the modeling information submitted by FRI has no applicability to impacts at Lake Brooklyn, because the model "did not include Lake Brooklyn". Particularly, in view of findings of fact 23, 28, 31-36 (exceptions to which have been previously rejected), it is apparent that the hearing officer rejected LBCA's view of the "facts" stated in this exception. While the model boundary (which is based on water level data for Floridan wells in the region (T. 164)) is between Lake Brooklyn and the pumping wells at the mine, the drawdown at the model boundary is based on a distance-drawdown relationship that relates to the pumping rate at the mine. The 1991 transient model showed that within the 9 square mile boundary, the impacts at the boundary were no more than 0.1 feet. (T. 129, 178). The reduced boundaries in the 1992 model accurately predicted what was happening at the mine site. (T. 178). The distance-drawdown relationship established by the model shows that the drawdown contour ceases before the model boundary is reached and therefore, before Lake Brooklyn is reached. (FR Exs. 5, 22). Impacts to Lake Brooklyn were also assessed through the review of water levels in the Floridan aquifer well (C- 120) between 1960 and 1992. (T. 928-933). The data showed that water levels in the well at Lake Brooklyn actually continued to rise when the 1989 and 1991 pump tests were conducted. (T. 411-412, 931-933; SJRWMD Ex. 13). In addition, when the pumping wells at the mine were turned off, the water level in the well at Lake Brooklyn did not recover. This indicates that there were outside influences for the fluctuation in the well. (T. 415, 933). The data does not show impacts from the pumping at the sand mine. (T. 942). LBCA also erroneously states that groundwater in the Floridan aquifer beneath Lake Brooklyn flows toward the mine. (See ruling on LBCA's factual exception 5). As listed in responses to LBCA's factual exceptions, particularly those regarding exceptions 8 and 12, there is competent, substantial evidence to support the bindings regarding no adverse impact to Lake Brooklyn. The hearing officer found that the applicant met its burden or proof in Conclusion of Law 62. In Conclusion of Law 63, the hearing officer concluded that the LBCA did not meet its burden of presenting contrary evidence that the withdrawals at the sand mine correlate with the decline in water levels at Lake Brooklyn. The exception goes to the weight of the evidence and inferences drawn therefrom by the hearing officer. This Board cannot reweigh conflicting evidence, judge credibility of witnesses, or otherwise interpret the evidence to reach a desired result. Heifetz, supra.; Freeze, supra.. This exception is rejected. LBCA Exception Number 2 The LBCA takes exception to the hearing officer's Conclusion of Law 63 that additional permit conditions in the case of a water shortage or a shorter permit duration are not necessary. The LBCA is reargue their case in the exception. The District has authority to require FRI to reduce its water use during a water shortage within the seven year life of the permit. Sections 373.175 and 373.246, Fla. Stat., and Rules 40C-2.381(2)(a)2. and 40C-21.271, F.A.C. Rule 40C-2.381(2)(a)2., F.A.C., which is incorporated into the permit as a limiting condition, states: Nothing in this permit should be construed to limit the authority of the St. Johns River Water Management District to declare a water shortage and issue orders pursuant to section 373.175, F.S., or to formulate a plan for implementation during periods of water shortage, pursuant to section 373.246, F.S. In the event a water shortage, is declared by the District Governing Board, the permittee must adhere to the water shortage restrictions, as specified by the District, even though the specified water shortage restrictions may be inconsistent with the terms and conditions of this permit. (emphasis added). Rule 40C-21.271, F.A.C., General Water Use Restrictions, specifies the restrictions which may be imposed during a water shortage on all water users and states, in pertinent parts: The Board may order use of general water use restrictions and the water use restrictions specified in Part VI for the appropriate water shortage phase for each affected source class. Further, the Board may order any combination in lieu of or in addition to the restrictions specified in Part VI of the restrictions described in Subsection (3), by use or method of withdrawal class, within each source class, if necessary to achieve the necessary percent reduction in overall demand. (emphasis added). General water use restrictions which may be imposed include provisions that facilitate the right of water users in an area to make voluntary agreements among themselves, with the concurrence of the Board or the Executive Director, providing for the mutual reduction, sharing, or rotation of use; restrictions on the total amount of water that may be used, diverted, impounded, extracted, or withdrawn during any day, month, or year during the declared shortage; restrictions on the timing of use, diversion, impoundment, extraction, or withdrawal of water; restrictions on pumping rates and schedules or diversion rates and schedules; or such other provisions or restrictions as are necessary to protect the water resources from serious harm. With the above cited authority, the District can require the withdrawals at the sand mine to be reduced during periods of water shortage within the seven year term of the permit by reducing the total amount withdrawn, controlling the schedule of withdrawals or "by other restrictions which arc necessary to protect the water resources." The hearing officer's conclusion is consistent with the rules and statutes which govern the Board. The exception is rejected. LBCA Exception Number 3 The LBCA takes exception to the hearing officer's Conclusion of Law 63 and Finding of Fact 47 that FRI satisfied the criteria regarding water conservation measures. See Rule 40C-2.301(4)(e), F.A.C. The LBCA reargues the facts which the hearing officer found to support the conclusion. However, the LBCA offered no evidence to rebut the testimony of FRI. In addition, the LBCA cites no authority that the hearing officer's conclusion is contrary to law. Florida Audubon Society v. Department of Environmental Regulation, 9 F.A.L.R. 565 (October 31, 1986). LBCA also renews its attack on the allocation amount, essentially iterating its factual exception which is rejected for the reasons set forth therein. It is improper for this Board to retry the case after the hearing has concluded by altering findings and reweighing evidence. Tampa Wholesale Liquors, Inc., 376 So.2d 1195 (Fla. 2d DCA 1979). LBCA's exception lacks any record citations or legal authority in support of this exception. The conclusion and finding are supported by competent substantial, and uncontroverted, evidence and the exception is rejected. (T. 43-52, 106, 234- 237, 988-989, 1103- 1104, 1111, 1132-1133) LBCA Exception Number 3 (sic). The LBCA takes exception to the hearing officer's Conclusion of Law 63, by arguing that the use of water from the surficial aquifer requires a separate permit. Section 40C-2.051, F.A.C., states: No permit shall be required under the provisions of this rule for the following water uses: Withdrawals of ground or surface water to facilitate construction on or below ground surface ..., in the following circum- stances: ground water may be withdrawn if it is recharged on site to the aquifer from which it was withdrawn by either infiltration or direct injection; surface water may be withdrawn only from wholly owned impoundments or works which are no deeper than the lowest extent of the uppermost water bearing stratum and which have no surface hydrologic connection off site, and the surface water must be recharged on site to the uppermost water bearing stratum by either infiltration or direct injection. This exemption from permitting is applicable here, and therefore, no additional permit is required. An agency's interpretation of its rules is afforded great weight. Franklin Ambulance Service v. DHRS, 45 So.2d 580 (Fla. 1st DCA 1989). LBCA offered no auth-orty or evidence that the District's interpretation is contrary to established law. This conclusion is supported by competent substantial evidence. The exception is rejected. (T. 38-39, 105, 249, 972, 1101-1102). RULINGS ON EXCEPTION TO CONCLUSIONS OF LAW CONTAINED IN POST- HEARING EVIDENTIARY RULING LBCA excepts the hearing officer's rulings in Finding of Fact No. 56 and Conclusion of Law No, 66 excluding LBCA exhibits nos. 61, 64, 71, 75, 76, 78, 79, 80, 82 and 83 as inadmissible for failure of LBCA to comply with subsection 90.956, Fla. Stat., regarding use of summaries of evidence. LBCA takes exception to FRI's objection post-hearing alleging that the exhibits had been admitted. In fact, the exhibits were not admitted at hearing. The LBCA's citation to the transcript is not the hearing officer's ruling on the exhibits. The hearing officer did not admit the ten exhibits on the record, as he did with every other exhibit that he admitted. The LBCA's assertion that it believed the exhibits were admitted is belied by LBCA's failure to list them as admitted in its Proposed Recommended Order on page 3. Therefore, LBCA's claim that FRI's continuing objection was a surprise is without merit. LBCA asserts that FRI cannot make a post-hearing objection to the exhibits in its Proposed Recommended Order and infers gnat FRI's objection to the admission of the exhibits was not preserved at hearing. Rule 40C-1.561, F.A.C., provides for the submission of legal briefs along with proposed findings of fact and conclusions or law. For matters that remain pending at the close of a hearing, a party may file a legal brief in support of its position. FRI did not object to the opinion testimony of the LBCA expert witness, only to the graphic depictions of such testimony. (T. 356). LBCA stated at hearing that the excluded exhibits were simply graphic depictions of the expert's opinion testimony. (T. 354). The record is abundantly clear that FRI preserved its objection to the exhibits and the hearing officer reserved ruling on their admission until the recommended order was issued. (T. 353, 358, 360, 363, 369, 370, 375, 377, 524, 531, 537, 1079-1080, 1178). LBCA essentially asserts that the exhibits are not "summaries" and therefore not subject to subsection 90.956, Fla. Stat., which, of course, the fact-finder found otherwise. LBCA's reliance on Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1989) is misplaced. Marks did not hold that expert testimony is not subject to subsection 90.956, but only that an expert is not required to utilize subsection 90.956 when presenting underlying data relied on for his opinion. The hearing officer found that the hydrographs were summaries and the underlying information was not indicated on the summary. The hearing officer allowed FRI time to review the data and present rebuttal. The fact-finder is entitled to great latitude in admitting or excluding summary evidence. Wright v. Southwest Bank, 554 F.2d 661 (5th Cir. 1977)(trial court without jury is entitled to great latitude covering the admission or exclusion of summary evidence). LBCA has failed to show that the hearing officer abused this discretion in excluding the exhibits. LBCA also takes exception that LBCA was denied rebuttal, or surrebuttal, on FRI's rebuttal case. As discussed in the ruling on LBCA's Exception 15, LBCA failed to request rebuttal of FRI's case. The hearing officer allowed cross-examination and LBCA did not offer any additional evidence from LBCA witnesses. Since the LBCA never requested to offer rebuttal testimony, then the hearing officer could not and did not deny that request. It is well-settled that an objection must be preserved during an administrative proceeding or it will be deemed waived. DeMendoza v. First Federal Savings and Loan, 585 So.2d 453 (Fla. 4th DCA 1991)(even if mistake was made in trial, party's waived its right to appeal the issue since it failed to call the deficiency to the court's attention during trial); Yachting Arcade, Inc. v. Riverwalk Condominium Assoc., 500 So.2d 202 (Fla. 1st DCA 1986)(party's failure to object to matters at administrative hearing made those matters unreviewable, even though party claimed fundamental procedural errors, it failed to show how it was prejudiced by any such action or omission; National Dairy Products, Corp. v. Odham, 121 So.2d 640 (Fla. 1959). Therefore, LBCA's exception based on the denial of rebuttal is rejected. LBCA argues that-the proper vehicle for the objection was a motion for rehearing. LBCA does not cite authority for its assertion. Since the hearing officer never ruled on the admissibility, there was no order on which to base a motion for rehearing. Nevertheless, the alleged error, if any, of excluding the exhibits, was harmless. Sims v. Brown, 574 So.2d 131 (Fla. 1991)(exclusion of manual was harmless since experts testified to the same matters in the manual); Little v. Banker's National Life Insurance Co., 369 So.2d 637 (Fla. 3d DCA 1979)(harmless error to exclude letter since witnesses otherwise testified at length as to its contents and conclusions). The LBCA expert testified extensively regarding the basis of each excluded exhibit and the information it depicts in relation to the conclusions of his expert opinion which the hearing officer weighed in rendering his factual findings and conclusions. (T. 346, 349, 351, 352, 358, 359, 364, 366, 371, 373, 411, 456, 457, 458, 481, 486, 501, 504, 507, 509, 511, 512, 516, 517, 518, 519, 542). The hearing officer concluded that even if the exhibits had been admitted it would not have altered his factual findings stating that they had limited probative value. (Conclusion of Law No. 66). Therefore, the exception is rejected. RULING ON RECOMMENDED ORDER'S COMPLIANCE WITH SECTION 120.59(2), FLA. STAT. LBCA asserts that the hearing officer failed to comply with subsection 120.59(2), Fla. Stat., by not providing a sufficiently explicit ruling on each of the parties' proposed findings of fact. Section 120,59(2), Fla. Stat., requires "a ruling upon each proposed finding" The Appendix to the Recommended Order does not contain an omnibus "blanket" ruling on all of LBCA's proposed findings which the courts have found inadequate. Cf. Island Harbor beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985); Health Care Management, Inc. v. DHRS, 479 So.2d 193 (Fla. 1st DCA 1985). The Appendix clearly contains a ruling upon each of LBCA's proposed findings. Section 120.59(2), Fla. Stat., requires no more. LBCA relies on Island Harbor Beach Club v. DNR, 476 So.2d 1350 (Fla. 1st DCA 1985), to support this argument. Island Harbor Beach Club, differs significantly from this case. The order Island Harbor Beach Club did not individually address each specific proposed finding as the Recommended Order in this case does. The only reference to proposed findings made in the Island Harbor Beacon Club order was a single paragraph which stated: The parties proposed findings of fact have been considered and where unsupported by the weight of the evidence, immaterial, cumulative, or subordinate. This differs from the Recommended Order in the instant case which specifically addresses each proposed finding and specifies where (by paragraph) in the Recommended Order that proposed finding is addressed. It is elementary to then read the paragraph referred to in the Recommended Order to determine what portion of the proposed finding was accepted. More applicable to this case is the case of Schomer v. Department of Professional Regulation, 417 So.2d 1089 (Fla. 3d DCA 1982). The order in Schomer did not contain specific rulings on each proposed finding submitted by the Appellant. The substance of the final order, however, demonstrated that each finding had been considered and ruled on. The Court noted that, for purposes of complying with Section 120.59(2) Fla. Stat., It would not elevate form over substance." An agency need not Independently quote verbatim each proposed finding and independently dispose of that proposed finding; rather, it is sufficient that the agency provide in its decision a written foundation upon which the reviewing court may assure that all proposed findings of fact have been consider and ruled upon and not overlooked or concealed. Id. at 1090. The Court held that it could discern from the substance of the order that each of the proposed findings were addressed, and to the extent the technical requirements of Section 120.59(2), Fla. Stat., were departed from, the departure did not materially impair the fairness or correctness of the proceedings. Id. at 1091. LBCA merely has to compare the hearing officer's findings with its proposed findings to discern those portions accepted. Therefore, the exception is rejected. RULING ON MOTION FOR REMAND Pursuant, to Rule 1.540(b), Fla. R. Civ. P., LBCA has filed a Motion for Remand asserting that newly discovered evidence establishes that a finding by the hearing officer is inaccurate because of allegedly false testimony by District expert witness, Dr. Larry Lee. The hearing officer found that Lake Brooklyn had been in a period of decline before and after the 1989 aquifer pump test and that due to rainfall deficits Brooklyn Bay was separated from the main body of Lake Brooklyn for at least 18 to 24 months before and during the 1989 aquifer performance test. The hearing officer determined that the rate and character of declines during the pumping were not distinguishable from the declines occurring before and after the test. Thus, he found that impacts to Lake Brooklyn water levels from the pumping were indistinguishable from the declines due to drought. (Finding of Fact No. 30). LBCA asserts that a newly discovered Department of Transportation (D.O.T.) survey, dated October 11, 1988, shows that Brooklyn Bay was not segregated from the remainder of the lake due to drought conditions prior to the 1989 aquifer pump test as testified by Dr. Lee and seeks the Board to remand the issue to the hearing officer for consideration of this new evidence. The only reasons for remand regarding fact finding are if an erroneous legal conclusion by a hearing officer warrants taking of evidence on the issue, or if a factual issue was never ruled upon by the hearing officer. See Miller v. Dept. Envt'l Reg., 5504 So.2d 1325 (Fla. 1st DCA 1987)(agency's modification of legal conclusions necessitated factual findings on issue which hearing officer had initially disregarded as irrelevant) and Cohn v. Dept. of Prof. Reg., 477 So.2d 1039 (Fla. 3d DCA 1985)(when the hearing officer fails to find a specific fact, agency must remand to the hearing officer to do so). Clearly, neither of these reasons have any application to Petitioner's arguments. Although subsection 40C-1.512, F.A.C., provides that the Florida Rules of Civil Procedure are applicable to District administrative proceedings to the extent not inconsistent with Chapter 120 or Chapter 40C-1, the applicability of Rule 1.540(b), Fla. R. Civ. P., is problematic and inconsistent with a subsection 120.57 proceeding. First, the civil procedure rule only applies to final judgments and in this subsection 120.57 administrative proceeding LBCA is attempting to apply the civil procedure rule to a nonfinal recommended order. Second, LBCA has not expressly excepted Finding of Fact No. 30 as not supported by competent substantial evidence or that a Board rule or policy has been incorrectly interpreted /1 , but actually seeks the Board to allow LBCA to supplement the record after remand with new facts for the hearing officer to weigh in applying those facts to the applicable District rules. Thus, unlike a trial court, Finding of Fact No. 30 cannot be altered by this Board if supported by any competent substantial evidence. Section 120.57(1)(b)10., Fla. Stat.; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); School Board of Leon County v. Weaver, 556 So.2d 443 (Fla. 1st DCA 1990). The Board may only consider whether the findings actually made by the hearing officer are sustained by the evidence, and whether, if so, they support the recommended legal conclusions. Cohn v. Dept. of Professional Regulation, 477 So.2d 1039 (Fla. 3d DCA 1985). Unlike a judge with plenary and equitable powers in a judicial setting, this Board, under Chapter 120, cannot authorize fact- finding after a hearing's conclusion except in the most narrow circumstances, none of which are applicable to the motion before the Board. Cf. Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 1st DCA 1989)(may remand if hearing officer makes erroneous legal interpretation); Cohn, supra.. (may remand if a necessary factual issue was not determined by the hearing officer); Friends of Children v. DHRS, 504 So.2d 1345 (Fla. 1st DCA 1987)(may remand if hearing officer makes erroneous evidentiary ruling). In effect, LBCA wants to utilize a civil procedure rule for the Board to authorize additional fact-finding on a matter already considered by the hearing officer regarding a finding supported by competent substantial evidence. Section 120.57, Fla. Stat., simply does not authorize the Board to take such action. Section 120.57(1)(b)10, Fla. Stat.; Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)(chapter 120 does not allow additional or cumulative evidence on matters already considered and the APA does not envision a never-ending process). Consequently, the application of Rule 1.540(b), Fla. R. Civ. P., is inconsistent with Chapter 120 and LBCA is free to raise any alleged error at hearing on appeal of the final order. Even assuming Rule 1.540(b), Fla. R. Civ. P., is applicable to this subsection 120.57 proceeding, LBCA has failed to clearly establish the extraordinary circumstances warranting the granting of its motion. The material issue of whether FRI's proposed pumping would impact the area lake levels already effected by a rainfall deficit was expressly raised by LBCA in its initial petition for hearing as far back as August 1992 and was also an issue stipulated in the Prehearing Stipulation prior to the February 1993 hearing. (Petition for Administrative Hearing paragraph f. 2, 3, 4.; Prehearing Stip. paragraphs B. 2, G. 1). Consequently, LBCA had over five months prior to hearing to elicit all relevant evidence to that Issue. If Rule 1.540(b) was applicable, LBCA's burden would be to clearly establish the following to receive relief: (1) it must appear that the evidence is such as will probably change the-result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before one trial by the exercise of due diligence; and (4) that it is material and not merely cumulative or impeaching. City of Winter Haven v. Tuttle/White Construction Inc., 370 So.2d 829 (Fla. 2d DCA 1979); King v. Harrington, 411 So.2d 912 (Fla. 2d DCA 1982), rev denied, 418 So.2d 1279 (Fla. 1982). The predicate for LBCA's motion is that Dr. Lee's testimony regarding the lake separation was false, therefore LBCA could not have exercised due diligence in discovering the alleged new evidence. LBCA has filed no express exception with record support establishing that Finding of Fact No. 30 is not supported by competent substantial evidence and therefore the Board by law cannot alter that factual finding. Section 40C-1.564(3), F.A.C.; Section 120.37(1)(b)10., Fla. Stat.; Freeze, supra.. Consequently, Dr. Lee's testimony is not false. Importantly, Dr. Lee's testimony was not the only evidence supporting this finding. LBCA's own witness, the president of the association, testified that Brooklyn Bay had been segregated for four or five years from the main part of the lake and that he had been able to walk across the lake without getting wet for the last four or five years. (T. 863, 870). Likewise, LBCA's own expert stated that Lake Brooklyn's condition between 1989 to 1991 had receded to such an extent as it was no longer a continuous lake. (T. 317). Accordingly, the predicate for LBCA's motion is factually inaccurate and misplaced. Furthermore, LBCA must clearly establish that even though the exercise of due diligence before the hearing, it would not have discovered the 1988 D.O.T. survey. Brav v. Electric Door-Lift Inc., 558 So.2d 43 (Fla. 1st DCA 1989)(movant's burden to establish due diligence); Plisco v. Union Railroad Co., 379 F.2d 15 (3d DCA 1967)(motion for new trial on newly discovered evidence is granted only where extraordinary circumstances are present). Even though the effects of FRI's proposed pumping on lake levels in time of rainfall deficit was an issue dating back to August 1992, LBCA asserts that it could not have obtained the survey prior to hearing in February 1993 "because of the logistics of requesting public records and the delay in delivery of same." LBCA could have reasonably anticipated that witnesses would testify regarding the disputed issue, particularly its own witnesses, and obtained the survey with the exercise of due diligence. LBCA offers no basis why D.O.T. would not have supplied the survey as required by law or that LBCA could not obtain it and, in fact, the public records law contains a provision for obtaining immediate relief if a request for records is denied. See subsection 119.11, Fla. Stat. In Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), a 1981 judgment had been entered finding that limestone mining would be inconsistent with the water management purposes of a water management district's flowage easement on platiff's property. Plaintiff sought a new trial because of newly discovered opposing evidence in a 1980 Corps of Engineers report on the effects of limestone mining. The trial court denied the motion. The appellate court agreed finding that the granting of such motions was disfavored and that the report was prepared in September 1980 well before the trial and judgment in June 1981 and could have been discovered prior to the with the exercise of due diligence. Likewise in this proceeding, the proffered D.O.T. survey was prepared in October 1988, nearly four and one-half years before the February 1993 hearing and LBCA has failed to show that due diligence would not have discovered the survey prior to the administrative hearing in this proceeding. See also, Morhaim v. State Farm Fire & Casualty Co., 559 So.2d 1240 (Fla. 3d DCA 1990)(no new trial granted based on post-judgment affidavits regarding evidence on known issue that could have been discovered prior to trial). LBCA also asserts that Dr. Lee misrepresented the contents of Clark's "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida" regarding its conclusions and his opinion concerning the separation of Brooklyn Bay from Lake Brooklyn and thus prejudiced LBCA's case. LBCA argument is an attack on the weight of the conflicting evidence which is the job of the hearing officer to resolve. An expert witness is not required to disclose the facts and data underlying his opinion. Marks v. Marks, 576 So.2d 859 (Fla. 3d DCA 1991). LBCA could have cross examined Dr. Lee regarding the separation. LBCA was aware of the "Clark Report" (T. 844) and even anticipated testimony regarding water levels in its case in chief (T. 846). Indeed, the report was listed by LBCA as its Exhibit 13 in the Prehearing Stipulation, although LBCA chose not to introduce it into evidence during the hearing. Dr. Lee testified not once but twice about the location of the staff gauge (T. 946 and 962-966). On cross, LBCA did not inquire about the location of the staff gauge or the lack of water beneath the bridge. (T. 991-1017). It was LBCA's burden to challenge the factual basis for Dr. Lee's opinion. City of Hialeah v. Weatherford, 466 So.2d 1127 (Fla. 3d DCA 1985). An insufficiency in the expert opinion offered, if any, should have been addressed in cross-examination by LBCA, not by a post-hearing motion. LBCA alleges that the outcome would be different if the DOT survey were part of the evidence. The Board cannot accept new evidence or rule on the admissibility of evidence which was not presented to the hearing officer. The Finding of Fact to which LBCA refers states six reasons why the correlation between the pumping at the sand mine and its effects on Lake Brooklyn water level were not established. See Recommended Order, Finding of Fact 32. The location of the staff gauge in Brooklyn Bay rather than Lake Brooklyn was one of those six. LBCA's error was in not knowing the location of the staff gauge (T. 418-420) rather than the testimony of Dr. Lee. Therefore, LBCA's allegation that but for the testimony of Dr. Lee, the hearing officer would have found differently is unfounded. The mere chance that the hearing officer might have found differently is insufficient to remand the hearing for additional fact finding. Cluett v. Dep't of Professional Regulation, 530 So.2d 351, 355 (Fla. 1st DCA 1988). The courts look with disfavor on motions based on newly discovered evidence because to look with favor would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the outcome, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial. Rushing v. Chappell, 247 So.2d 749 (Fla. 1st DCA 1971); Henderson Sians v. Fla. Dept. of Transp., 397 So.2d 769 (Fla. 1st DCA 1981). It is well-settled that no abuse of discretion occurs on the part of an agency by refusing to direct a remand to receive evidence which could have been introduced during the course of the original proceedings. Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981) LBCA has failed to clearly establish a right to relief and therefore the motion is denied. RULING ON MOTION FOR OFFICIAL RECOGNITION AND MOTION TO SUPPLEMENT THE RECORD LBCA has filed a Motion for Official Recognition and to Supplement the Record seeking the Board to accept into evidence the October 11, 1988 D.O.T. survey which was the subject of LBCA's Motion for Remand and also the U.S.G.S. publication "Report of Investigations No. 33-Hydrology of Brooklyn Lake Near Keystone Heights, Florida", by Clark, also referenced In LBCA's Motion for Remand. The Board is not a fact-finder in this subsection 120.57 proceeding and it is reversible error for the Board to supplement the record through post-hearing evidence. Section 120.57(1)(b)10, Fla. stat., Marks v. Northwest Florida Water Management District, 566 So.2d 46 (Fla. 5th DCA 1990)(court refused to take judicial notice of factual matter based on records that could have been offered at administrative hearing); Nest v. Dept. of Professional Regulation 490 So.2d 987 (Fla. 1st DCA 1986); Shongut v Mark, 173 So.2d 708 (Fla. 3d DCA 1965)(Where matters raised on motion for relief from judgment could have been available to movant during trial proceedings, denial of motion was not abuse of discretion); Weaver, supra.. Moreover, the Motion for Remand has been denied. LBCA's post- hearing motions will be available as part of the record of this proceeding for purposes of any appeal which may be pursued. ACCORDINGLY, IT IS HEREBY ORDERED: The Recommended Order dated June 4, 1993, attached hereto as Exhibit A, is adopted in its entirety except as modified by the final action of the Governing Board of the St. Johns River Water Management District (Ruling on LBCA Exception 23). Florida Rock Industries' application for consumptive use permit no. 2-019-0012AUR is hereby granted under the terms and conditions as provided herein. The post-hearing Motion for Remand, Motion for Official Recognition and Motion to Supplement the Record filed by LBCA are hereby denied. DONE AND ORDERED this 14th day of July 1993, in Palatka, Florida. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT By: JOE E. HILL CHAIRMAN RENDERED this 14th day of July 1993. By: SANDRA L. BERTRAM ASSISTANT DISTRICT CLERK
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Florida Rock Industries (FRI or applicant), a Florida corporation, operates a nine hundred and eighty acre sand mine known as the Goldhead Sand Mine (Goldhead) in Clay County, Florida. The mine is located approximately six miles northeast of Keystone Heights and fifty miles southwest of Jacksonville. FRI has operated the mine since 1958. With the exception of eighty acres of land owned by FRI, the remainder of the land on which the mine is located is owned by Carroll-Phillips Investors and has been leased to FRI since 1973. The mine lies within the jurisdictional boundaries of respondent, St. Johns River Water Management District (District), a special taxing district created by the legislature and charged with the responsibility for administering and enforcing permitting programs for consumptive uses of water. FRI is accordingly subject to the District's regulatory authority. As a necessary component of its operation, FRI withdraws approximately 2.09 million gallons per day (MGD) of groundwater from the Floridan Aquifer which is used in the production of sand. This use of water is made pursuant to a consumptive use permit (no. 2-019-0012U) issued to FRI by the District on December 11, 1984, and which allows it to consume 762.85 million gallons per year of groundwater for hydraulic dredging, cleaning and purification of sand at the Goldhead mine. The permit was issued for seven years. In order to continue groundwater withdrawal and use, FRI has applied to the District for a seven-year renewal of its permit with no request for an increase in allocation. That request, which has been identified as application no. 2-019-0012AUR, is the subject of this proceeding. After conducting a review of the application, making site inspections, and performing various studies and analyses, on July 28, 1992, the District, through its staff, gave notice of its intent to approve the application with certain conditions. Thereafter, on August 6, 1992, petitioner, Lake Brooklyn Civic Association, Inc. (petitioner), a nonprofit corporation made up of property owners in adjacent areas of Clay County, filed a petition under Subsection 403.412(5), Florida Statutes, seeking to contest the proposed action. Petitioner is a citizen of the state and has an interest in activities that may injure or harm the state's water resources. Thus, it has standing to bring this action. As twice amended, the petition generally alleged that the consumptive use would (a) cause an unmitigated adverse impact on adjacent land uses, including a significant reduction in water levels in Lake Brooklyn and Spring, Gator Bone, and White Sands Lake, which lie generally to the south and southwest of the mine site, (b) cause a deterioration in water quality, (c) cause economic or environmental harm, and (d) be for purposes other than operating a sand mine. The broad three-pronged test to be used in determining whether the permit should be issued is whether the proposed consumptive use is a reasonable- beneficial use, whether it will interfere with presently existing legal uses of water, and whether it is consistent with the public interest. In addressing this test, the parties have presented extensive expert testimony involving highly technical subject matter. As might be expected, the experts reached different conclusions as to whether the criteria have been met. In resolving these conflicts, the undersigned has accepted the more credible and persuasive evidence, and this accepted testimony is recited in the findings below. The Mining Site Operations The entire mine site is around 7,000 feet east to west, about one mile north to south in a rectangular shape, and lies within the lake region of northeast Florida. The mine's product is silica sand used for concrete and masonry mortar for construction throughout northeast Florida. As such, it produces an economic benefit to the region. The mine is located on one of the few sites in the northeast Florida area with deposits suitable for construction purposes and is the closest sand mine to the Jacksonville market. In 1958, FRI installed three ten-inch diameter production wells in the center of the mine site. One well is 450 feet deep while the other two are 460 feet deep. The 1984 permit authorizes withdrawals of 762.85 million gallons of water per year, an average rate of 2.09 MGD, and a maximum rate of 3.75 MGD. This rate is consistent with the amount of water used at other mines in north Florida and is based on FRI's projected maximum annual use. The use is industrial commercial for sand mining while the source is the Floridan Aquifer, the lowest acceptable water quality source available capable of producing the requested amount of water. Water use withdrawal from the three wells is monitored by in-line flow meters installed in 1991 as a water control and conservation measure. The pumping rate depends on the number of fixtures and valves open in the system at the time of pumping. However, the actual rate of water production cannot be varied at any of the pumps since the wells are connected to "on or off" pumps. The need for water in the dredge pond and processing plant dictates how long FRI will have a pump in operation. Water from the wells is first discharged into a dredge pond, twenty feet deep, which is an approximately 155-acre excavation lake located in the southwest portion of the mine site. In periods of low water, the water is used to float the dredge, which requires some three feet of water to float, and in conjunction with a bulldozer, to wash sand down from the bank toward the dredge. After the dredge sucks up sand and water from the bottom of the pond, this mixture is slurried to an on-site processing plant where more water is added to sort and wash the sand. The end product (silica sand) is then loaded onto trucks which haul the product to the market. After processing, the moisture content of the sand product is only 5 percent. The tailings (unusable waste product) and wash water are then routed by a slurry pipe to settling areas and eventually recirculated through a system of ditches, canals and water control structures back into the dredge pond. No chemicals are used in the operation. Although FRI's contract with the lessor of the property requires it to maintain the dredge pond elevation at a specified elevation, this requirement cannot be fulfilled during drought conditions. The mining operation is a closed system to the extent there is no point source (surface water) discharge from the system. Even so, a significant amount of water loss occurs during the process, mainly through percolation into the ground. Other water loss occurs through evaporation. The receiving water from the site is primarily the surficial aquifer which recharges the downgradient lakes, including Gator Bone, White Sands, and Spring Lakes. Water may also travel through the surficial aquifer into the sinkholes on site and thence to the Floridan Aquifer. However, not all water is lost to sinkholes in the settling area because they are filled with fine materials. This is confirmed by the fact that water returns to the dredge pond. The mining operation has not affected this pattern. The lakes in the region are replenished solely by rainfall, either by direct rain on the lakes or through water seeping through sands. FRI plans to mine approximately thirty additional acres at the Goldhead Site during the next seven years. To this end, it has secured a management and storage of surface waters permit from the District which allows construction of this additional acreage. It also has acquired an industrial waste water discharge permit from the Department of Environmental Regulation. It is expected that within the next two to four years, FRI will abandon the current dredge pond and start a new one on the north side of the property to accommodate mining operations, or in the alternative, extend the current pond to the north. Water conservation A water conservation plan has been submitted by FRI. Measures already implemented include (a) using in-line flow meters to monitor amounts of withdrawal, (b) not pumping for more than seventeen hours per day to prevent exceeding the maximum allotment per day, (c) regularly monitoring withdrawals to ensure allocations as not being exceeded, (d) extending the plant discharge further past the sinkholes in the settling area to maximize return water to the dredge pond, (e) raising water levels in the settling area to facilitate flow back to the dredge pond, (f) during periods of drought using bulldozers instead of water spray to break loose sand formations, (g) curtailing production when further production would cause the plant to exceed allocations, (h) replacing water-cooled bearings in plant machinery with bearings that do not require water, and (i) restricting dredge mobility to allow operation in shallower water. No other water conservation measures are economically, environmentally or technologically feasible. Hydrogeologic characteristics at the mine site The mine site, which is located within the Upper Etonia Creek surface water drainage basin, generally slopes from 200 feet NGVD on the north to 120 feet NGVD on the south, and is underlain, in order, by approximately 10 to 50 feet of sand (known as the surficial aquifer), 200 feet of dense, moist clay (known as the Hawthorn Formation), and then a highly transmissive limestone formation (known as the Floridan Aquifer). The surficial aquifer flows from north to south across the site while water falling on the site primarily moves downgradient through the surficial aquifer. There are five sinkholes on the site, all having predated the mining activities, which may provide a conduit for recharge from the surficial aquifer to the Floridan aquifer. Except where the Hawthorn formation, a confining unit to the Floridan aquifer, is breached, recharge through the Hawthorn formation is very slow because of the dense clays of that formation. Aquifer characteristics within the Floridan aquifer beneath the site and immediately adjacent thereto are relatively uniform. As noted earlier, 5 percent of the water leaves the mine site as moisture in the sand product. The remaining 95 percent of water is immediately recharged on site to the surficial aquifer through various impoundments, and after entering the surficial aquifer, that portion of the water which is not recirculated to the dredge pond for reuse in the mining process moves either vertically into the Hawthorn formation, vertically into the Floridan aquifer through a sinkhole, downgradient through the surficial aquifer to one of the lakes south of the mine, or evaporates. It is noted that notwithstanding the mining operations, the flow in the surficial aquifer system still parallels the topography as it existed prior to mining, and the same saturated thickness within the surficial aquifer exists on site as existed before mining occurred. Hydrogeologic Characteristics of the Region The region in which the mine is located is very high in topographic altitude indicating that it is a groundwater recharge area. Like the mine site, the region has three distinct geologic units underlying the surface, including sands and clayey sands (surficial aquifer), thick clays (Hawthorn formation) and limestones and dolomites (Floridan aquifer). The Hawthorn unit serves as a confining unit or semi-confining unit between the surficial aquifer, or water table, in the upper unit and the Floridan aquifer in the lower unit. When solution channels develop within the limestones in the lower unit, the openings can cause the overlying units to collapse, forming sinkholes. Thus, when the Hawthorn formation is breached by the development of a sinkhole, water can move rapidly through the overlying units to the Floridan aquifer. Many of the lakes within the region exist over collapsed features within the limestone units beneath them and are referred to as sinkhole lakes. The rate of recharge from each lake depends on the rate of leakance into the Floridan aquifer. Some lakes leak fast, others not at all. For example, Lake Brooklyn fluctuates about two feet, Lake Johnson about thirteen feet, and Pebble Lake about thirty feet. Lake Brooklyn, which lies several miles to the southwest of the mine, is the fourth lake in a chain of lakes consisting of Blue Pond, Sand Hill Lake, Lake Magnolia, Lake Brooklyn, Keystone Lake, Lake Geneva, Oldfield Pond, and Half Moon Lake. All of these lakes are in a different surface water drainage sub-basin within the larger Upper Etonia Creek Basin than the mine site. The lakes above Lake Brooklyn in the chain are at higher elevations than Lake Brooklyn, and when rainfall is sufficient, water flows from Blue Pond to Sand Hill Lake, to Lake Magnolia, and then to Lake Brooklyn through Alligator Creek. Direct rainfall and surface water inflows from Alligator Creek represent the most significant sources of water to Lake Brooklyn. Other pertinent lakes in the area are Spring, White Sands and Gator Bone Lakes, which lie almost directly along the mine site's southern boundary and are each less than a mile from the mine's dredge pond. During the period records have been maintained for water levels in Lake Brooklyn, it has fluctuated over a range of slightly more than twenty feet. Although average rainfall within the Upper Etonia Creek Basin is approximately fifty-one inches per year, during the period from 1974 through 1990 the basin experienced a continuing period of below normal rainfall resulting in a cumulative deficit of rainfall for this period of minus seventy-eight inches. Since 1988, the lake region has experienced a severe drought. Because the lakes in the region have risen or fallen in correlation with periods of below normal or above normal rainfall, lake levels have fallen dramatically in recent years. Water levels in Lake Brooklyn began declining in 1974 at the same time the period of below normal rainfall began and continued declining until 1991, a year in which the region experienced above normal rainfall. These low water levels were exacerbated by the cessation of surface water inflows from Alligator Creek in late 1988 which continued until late 1992 when such flows resumed. The cessation of surface water flows into Lake Brooklyn during the period from 1988- 1992 were a direct consequence of the extended period of below normal rainfall in the region. Finally, very little, if any, of the groundwater flowing in the Floridan aquifer beneath Lake Brooklyn flows toward the mine site. Water Quality Impacts Numerous analyses have been conducted to determine water quality of the site, water quality in nearby homeowners' water systems, and water quality impacts of the proposed consumptive use. They include analyses conducted by the District in 1989 and 1992, including sampling of water quality and an analysis of the background levels for certain parameters, and an assessment of data from HRS testing in March 1989 and May 1992. In addition, FRI conducted water quality sampling on site in eight wells, the dredge pond and a settling pond. Finally, petitioner reviewed water quality samples from off-site private water supply wells taken on March 1, 1989, and on July 22, 1992, by unknown persons. As to this latter sampling, petitioner had no knowledge of the protocol used in obtaining the 1989 samples and offered no evidence of reliability of the 1992 data. Thus, the reliability of its assessment is in doubt. None of the water quality samples taken from the mine site indicate a violation of state water quality standards. However, petitioner posits that a chemical reaction is likely occurring at the deeper levels of the dredge pond, possibly causing undissolved iron in sediments to become dissolved, and then traveling in solution through the clays of the Hawthorn formation into transmissive units and finally to off-site homeowners' wells which may be in those units. This theory was predicated on the results of 1989 HRS sampling which revealed some wells near White Sands Lake experienced elevated levels of iron and manganese, and an assumption that a chemical reaction was occurring because herbicides were used in the dredge pond. However, only one application of a herbicide occurred, and that was in 1990, or one year after iron was detected in the off-site homeowners' wells. Petitioner agreed that the 1990 application of herbicide could not have affected the 1989 sampling. It also agreed that these reactions were less likely to be occurring in a pond with water flowing through it. In this case, water is circulated through the dredge pond by being pumped into it, pumped out of it, and allowed to flow back into the pond. FRI determined that no state water quality standards were exceeded for iron, manganese, zinc, turbidity, total dissolved solids, chloride and nitrate in the surficial aquifer and Hawthorn formations at the site. The wells used for monitoring water quality were installed and sampled using standard quality assurance techniques. Water quality from the surficial aquifer was emphasized because if iron or manganese were present in the water, it would most likely be detected in wells in the surficial aquifer because they are detected in wells immediately downgradient of the source. If the chemical reaction is occurring, water leaving the dredge pond is contaminated, and such water will follow the path of least resistance by going either to the Hawthorn formation or the surficial aquifer. Because of the geologic properties of the Hawthorn, this path is the surficial aquifer. At least 70,000 gallons per day enter the surficial aquifer from the bottom of the dredge pond. Since contaminated water would receive water quality treatment by absorption of the Hawthorn but not in the surficial, water in the surficial aquifer represents the worst case scenario as to the possible presence of contaminated water. The chemical reactions which petitioner believes may be occurring in the deeper portions of the dredge pond require the presence of an acidic environment and reduced oxygen levels in the water. FRI's water quality testing indicates that water in the dredge pond is not acidic, but rather is neutral. Therefore, any reaction which might be occurring could not be on a large enough scale to affect water quality. Moreover, even if the reactions were occurring, it was established that the clays in the Hawthorn formation would absorb iron, and such absorption would not take place in the surficial aquifer. Therefore, it is found that there would be no adverse impact to groundwater including the surficial aquifer and that water quality standards will be met. Although petitioner presented evidence that in 1989 HRS testing of 12 out of 212 homeowners south of the mine site indicated that three homeowners had iron concentrations in excess of state drinking standards and two had manganese concentrations in excess of state drinking water standards, this is insufficient to prove that the mining operation has an adverse impact on water quality. To begin with, some of the wells sampled were thirty to fifty years old even though the life expectancy of a well is fifteen to twenty years. Some were constructed of galvanized steel pipe, and those wells also indicated high turbidity levels. High turbidity levels are caused by a number of unrelated factors and will result in increased iron levels that are not representative of the quality of the groundwater in the formation, but rather of the iron-laden sediments in the formation, or from the casing material. With the exception of one well (the Sutton well), the water from the homeowners' wells did not exceed background water quality for iron and manganese. The elevated iron and manganese concentrations in the Sutton well are caused by a number of factors other than the mine. Then, too, a proper sampling technique may not have been followed during the 1989 sampling event thus rendering the results unreliable. Finally, properly constructed monitoring wells should be used to assess the quality of the groundwaters, and the wells sampled in 1989 and 1992 were not of that type. The Mine's Impact on Water Levels Perhaps the issue of primary concern to members of petitioner's organization is whether the mining operations have contributed to the decline in water levels of nearby lakes, including Lake Brooklyn. This is because of serious declines in the levels of those water bodies over the past years, and a concomitant decrease in the value of homes which surround the lakes. In an effort to resolve this and other water level issues, the parties made numerous studies of the current and anticipated water level impacts from the site. This data collection effort was far more extensive than is normally conducted for a mine of this size. They included aquifer performance tests by FRI and the District, steady state and transient computer modeling of impacts on the Floridan and surficial aquifers by FRI, an analysis of correlations of pumping and water level changes in lakes and aquifers by FRI and petitioner, photolinear and fracture trace analyses of structural conditions by FRI and petitioner, a stratigraphic analysis of a geologic core retrieved from the site by FRI, installation of deep and shallow wells for groundwater monitoring by FRI, groundwater flow mapping by FRI, review of literature by all parties, review and analysis of rainfall data by all parties, analysis of evaporation data by the District and petitioner, and an analysis of geophysical logs from wells by FRI and the District. Aquifer performance tests Aquifer performance tests, which enable hydrologists to reach conclusions regarding the characteristics of the aquifers tested, were conducted in January 1989 by the District and June 1991 by FRI. In a typical pump test, an aquifer production well pumps at a constant rate, while water levels are monitored in observation wells at specified distances from the pumping well. In this case, the tests measured effects of pumping from the mine production wells for periods ranging from 78 hours to 108 hours at approximately twice the average rate of 2.09 MGD. The zone of influence of pumping was measured at wells placed at the property boundaries, at Gold Head State Park, east of the mine, as well as wells to the south of the mine for the 1989 tests. During the 1989 tests, lake levels for Lake Brooklyn and Gator Bone, White Sands and Spring Lakes were recorded. The effects of pumping were approximately equal for wells spaced approximately equal distances along the east, south and west. Thus, for purposes of analysis, the Floridan aquifer was considered isotropic and homogeneous. This is consistent with assumptions commonly made by geologists in Florida. Computer models were calibrated with actual results of these tests to account for variations caused by this assumption. The District has concluded, and the undersigned so finds, that no changes in the levels of the lakes are attributable to pumping. Further, the aquifer itself will not be harmed by the use of the amount of water requested in the application. The tests indicate the maximum amount of drawdown in the Floridan aquifer from pumping at twice the average rate is 0.1 to 0.6 foot in neighboring wells. Effects of actual pumping will be approximately one-half the test observed amounts on an average pumping day. For example, based on the 1989 test results, drawdowns in the Floridan aquifer at the boundary of the FRI property during an average day of pumpage should not exceed 0.2 to 0.3 feet while drawdowns beneath Spring, White Sands and Gator Bone Lakes to the south of the mine should be less than 0.2 feet. The tests provide actual measurements of the effects of pumping. Indeed, all three lakes were declining before the 1989 test began and continued to decline after the test was ended. However, the rate of decline during the seventy-eight hours of the test was not distinguishable from declines which occurred before or after the test. Computer modeling As a supplement to the aquifer performance tests, FRI performed computer modeling to determine effects of the water withdrawal and use on the Floridan and surficial aquifers. These models are used by hydrologists to predict impacts associated with a particular source of stress, such as pumpage, to an aquifer and, in this case, occurred in three phases. The first was an impact model which determined the drawdown in the Floridan aquifer. The second occurred as a result of questions raised by residents of the sand mine area and included a "steady state" model simulation of impacts of the Floridan and surficial aquifers. The third occurred as a result of questions raised by petitioner and included new data along with both a "transient state" and "steady state" simulation. All three phases of modeling were consistent in finding that the effects of pumping are non-existent or negligible, that is, a predicted drawdown in various locations of the Floridan aquifer of from less than 0.1 to 0.3 feet on an average pumping day, and they corroborated the drawdowns observed during both the 1989 and 1991 aquifer performance tests. Petitioner's witness Dr. Stewart criticized FRI's 1992 "steady state" computer modeling on the grounds FRI had insufficient data to conduct the modeling, the constant head boundaries were set too close to the pumping, a transient model should have been run, and the modelers assumed that the Floridan aquifer is isotropic and homogeneous. However, Dr. Stewart failed to review or consider (a) any technical data or information gathered since September 10, 1992, (b) the 1991 transient model, (c) the December 1992 transient model, (d) the computer disc for the July 1992 steady state model, (e) the December 1992 steady state model, (f) the December 1992 calibration, (g) the basis for setting the constant head boundaries, or (h) the data from the 1989 and 1991 pump tests. All of this data was part of the evidence FRI's experts used in formulating their opinions. Dr. Stewart agreed that he could not form any conclusions on this data and that the Floridan aquifer is rarely completely homogeneous and isotropic, but that he and other modelers regularly make that assumption. The modeling was calibrated to replicate actual subsurface and pumping conditions. Maximum drawdown in the Floridan aquifer under normal pumping conditions is modeled to be 0.1 to 0.2 feet beneath White Sands Lake. This is drawdown with no replacement, although there will be leakance back to the Floridan aquifer through sinkholes on the site and surcharge to Gator Bone, White Sands and Spring Lakes through the surficial aquifer. The impact to the Floridan is minor compared to normal water level fluctuations in that aquifer of 3 to 5 feet per year. In fact, barometric pressure changes can cause water level changes of up to one foot per week. Lake levels Because many of the lakes in the area leak downward, water levels in the lakes could be affected by the changes in levels in the Floridan aquifer. Indeed, for lakes connected to the Floridan aquifer, changes in the level of the potentiometric surface (or pressure) in the Floridan aquifer can have an impact on the level of the lakes. However, a decrease in lake levels will be less than that of the decrease in the Floridan aquifer, depending on the rate of leakance. Consequently, even if Lake Brooklyn and Gator Bone, White Sands or Spring Lakes do leak to the Floridan aquifer, the amount of decline in lake levels attributable to pumping at the mine will be less than the 0.1 to 0.2 foot modeled by FRI. This drawdown effect will not accumulate over time, but rather will remain constant after reaching steady state conditions. Even if levels in Gator Bone, White Sands and Spring Lakes are affected by drawdowns in the Floridan aquifer, that effect will be more than offset by surcharge to the surficial and Floridan aquifers from the dredge pond. The net effect to the lakes would be either positive or immeasurable. This is confirmed by the computer modeling results. Lake stage and precipitation data for Spring, White Sands and Gator Bone Lakes indicates that these lakes, like other lakes in the region, rise and fall in correlation with precipitation patterns. For example, in 1991, a year with above normal rainfall, Spring Lake rose 4.1 feet in elevation, White Sands Lake 2.9 feet in elevation, and Gator Bone Lake rose 3.5 feet in elevation. Similarly, water levels were monitored before, during and after the 1989 aquifer performance test in a portion of Lake Brooklyn known as Brooklyn Bay. Because of low rainfall, Brooklyn Bay was separated from the main body of Lake Brooklyn for at least eighteen to twenty-four months before and during the 1989 aquifer performance test. The lake had been in the midst of a long term decline both before and after the test, and the rate and character of declines during the period of pumping were not distinguishable from the declines occurring before or after the test. It is accordingly found that the impacts on water levels in Lake Brooklyn, if any, as a result of pumping from the Floridan aquifer are immeasurable. According to petitioner's witness Boyes, activities at the mine have an influence on water levels in Gator Bone, White Sands and Spring Lakes by "increasing the rate of decline". However, the witness could not quantify the degree of impact but stated the impacts during the 1989 aquifer performance tests were a decline of .03, .03 and less than .03 foot, respectively, for each lake. The witness also opined that, based on District staff guage readings during the 1989 aquifer performance testing, pumping at the mine resulted in a .04 foot decline in lake level for Lake Brooklyn during the 1989 testing period. This decline had a net result of .8 acre decrease in the previously 600 acre plus Lake Brooklyn. By comparison, the drought caused a decline of 162 acres in 1989 and an additional 158 acres in 1990. It is noted that the decline in each lake would be less during average pumping conditions, or about one-half of the .04 foot decline, since average pumping is one-half of the aquifer performance test pump rate. Finally, petitioner's witness Dr. Stewart opined that there is insufficient data to determine whether any impacts to lake levels are occurring. It is found, however, that these drawdowns are less than the .1 to .2 foot modeled by FRI and should have no significant adverse impacts on water levels. Preferential flow theory Petitioner presented evidence of a purported correlation between pumping at the mine and water levels in a Floridan aquifer well located on the southwest side of Lake Brooklyn, 4.3 miles from the mine, and lake levels in Brooklyn Bay, 3 miles from the mine. According to petitioner, this serves as proof of a "preferential flow pattern" in the Floridan from Lake Brooklyn to the mine, and that this preferential flow results in a .04 to .05 foot drawdown in the Floridan aquifer at Lake Brooklyn. However, this correlation is deemed to be incorrect for several reasons. First, if a true correlation existed, recovery from pumping effects would occur after pumping ceased, but the Lake Brooklyn well showed recovery in the Floridan aquifer prior to cessation of pumping, and did not recover when pumping stopped at the end of the 1989 aquifer performance testing. Second, if the premise is correct, impacts from pumping would occur in wells closer to the pumping earlier than in wells farther away, but the Lake Brooklyn well, 4.3 miles from pumping, showed drawdown began before that of the Goldhead well, only 1,000 feet from pumping. Third, levels for the Lake Brooklyn well should have declined during both the 1989 and 1991 aquifer performance tests but the levels rose during the 1991 tests. As to the water level changes in the well during the 1989 test, witness Boyes believed these may reflect declines due to hydrologic conditions rather than the pump test. Fourth, if a true correlation existed, impacts would be experienced following the same hydrographic pattern as pumping, but the Lake Brooklyn well's hydrographics did not correlate to the pumping schedule at all times of the year. It should also be noted that at least two other large scale water users are withdrawing water from wells within 1.25 miles from the Lake Brooklyn well and may affect that well's water levels. Further, the variations in the well may be explained by many other variables, such as barometric pressure changes, diurnal fluctuations in water levels, rainfall, and pumping from closer wells. Finally, Brooklyn Bay is now physically separated from Lake Brooklyn, and it was improper for petitioner to rely on lake level information from Brooklyn Bay to support its theory regarding Lake Brooklyn. To further support its hypothesis that a preferential flow path exists between the mine and Lake Brooklyn, petitioner utilized a "photo linear analysis" or "fracture trace analysis", which is based on an interpretation of surface topographic features to determine the presence of subsurface hydrogeologic features such as solution channels in the limestones of the Floridan aquifer. However, without extensive subsurface testing, which is not present here, such analyses are only interpretative to determine what, if any, subsurface features are present and their hydrogeologic effect. It is noted that subsurface fractures are present less than 50 percent of the time, and if present, the features may be hydrologic barriers as well as preferential flow paths. According to witness Boyes, a photolinear feature (fracture) exists from Lake Brooklyn through Spring Lake and across the mine property to Goldhead State Park. If such a feature did exist, however, the drawdown during the aquifer performance tests and other pumping would be greater adjacent to Spring Lake than adjacent to Lake Brooklyn. This was not observed. Moreover, petitioner's witness Dr. Stewart thought the photolinear was only inferred and had a lower degree of confidence that it exists. FRI's witness Fountain established that elongated surface features are more likely to demonstrate linear subsurface features. Both witness Boyes and Dr. Stewart agreed with this conclusion. That being the case, the postulated Lake Brooklyn-mine photolinear is not demonstrated, and continuation of the elongated axis of Lake Brooklyn and Brooklyn Bay would bypass the mine site altogether. Because no investigations have been conducted to demonstrate that these postulated photolinear features exist, and the more reliable results of the aquifer performance tests indicate otherwise, the preferential flow path theory is deemed at best to be highly speculative. If the Lake Brooklyn-mine photolinear feature offered a preferential flow path as opined by witness Boyes, the resulting drawdown would be elongated with a zone of influence extending from the mine westward toward Lake Brooklyn. Therefore, areas closer but not on the feature would experience less drawdown than areas farther away which are on the feature, the zone of influence would extend from the mine's wells through Spring Lake toward Lake Brooklyn causing declined water levels along the feature, and areas closer to the pumping wells, such as Spring Lake, would experience a greater decline than areas farther away, such as Lake Brooklyn. However, evidence offered by petitioner shows that the water levels between Lake Brooklyn and the mine are actually higher than in surrounding areas. Finally, even if petitioner's preferential flow path theory were true, there is no evidence that the pumping from the mine is resulting in significant and adverse impacts as required by District rules. Therefore, it is found that the sand mine does not cause significant and adverse impacts on the water levels in the Floridan aquifer or on the water levels of Lake Brooklyn or Gator Bone, White Sands or Spring Lakes. Rather, the lake levels in each of the four lakes in issue here are directly or indirectly a function of rainfall. Intermediate and surficial aquifers Whether an intermediate aquifer is present beneath the mine site is subject to dispute. All parties agree that, on a regional scale, the Hawthorn formation contains some discontinuous water-bearing lenses that in some places produce water in quantities sufficient for household use. The lenses occur in carbonate deposits in the formation, although not all carbonate deposits or all water bearing units will necessarily transmit water. The evidence is less than persuasive that the Hawthorne formation contains carbonate units which are present on the sand mine site as transmissive beds. This finding is based on FRI's review of on-site core boring information and other data from the site. In addition, this finding is corrorborated by District witness Lee, who concluded that water from the site is not discharging into the Hawthorn, but rather into the surficial aquifer. This is because clays comprising the Hawthorn have low permeability, causing water to flow laterally through the surficial aquifer rather than into the Hawthorn. With respect to impacts to the surficial aquifer, FRI presented evidence that during mining operations, the surficial aquifer will be surcharged by up to five feet. When mining operations cease, water levels will return to natural conditions. This evidence was not contradicted. Impacts on Property Values and Recreation Testimony regarding the property values for lake front properties on Lake Brooklyn and Gator Bone, White Sands and Spring Lakes was offered by petitioner's witness Price. He established that values have declined since mid- 1989 as a result of a loss of recreational value suffered as water levels have receded. However, witness Price stated that he would not expect a 0.1 foot drop in lake levels to negatively affect property values. Since the declines predicted by petitioner are far less than a 0.1 foot drop, it is apparent that FRI's water use will not result in harm to property values in the area. Similarly, while it is true that declining water levels have impaired recreational uses of Lake Brooklyn and Gator Bone, White Sands and Spring Lakes, FRI's water use cannot be blamed for such impairment. Environmental Impacts The anticipated impacts of the water use on the wetlands and wildlife resources of the area were addressed by FRI witnesses Peacock and Lowe. According to Peacock, who analyzed the wetland vegetation, the dominant species and their adaptions, the wildlife resources and their adaptions, and the general ecology of the area, the water levels in the adjacent lakes have historically fluctuated greatly, and wildlife that use the lakes have adapted to these fluctuations. His opinion that the mine's water use will not have any significant adverse impact on the environment of Lake Brooklyn and Gator Bone, Spring or White Sands Lakes is hereby accepted. Based upon witness Lowe's inspection of the three downgradient lakes, his past knowledge of Lake Brooklyn, the aquifer performance tests, and Dr. Lee's conclusion that the maximum drawdown in the lakes would be 0.1 foot, Lowe opined that the proposed water withdrawal will not cause environmental harm. In addition, such a drawdown will not adversely affect off-site vegetation or cause unmitigated adverse impacts on adjacent wetlands or other types of vegetation. These conclusions were not contradicted and are hereby accepted. Compliance with rule criteria To obtain a consumptive use permit, an applicant must give "reasonable assurance" that the proposed water use is a reasonable beneficial use, will not interfere with any presently existing legal use of water, and is consistent with the public interest. These broad criteria are further explained by criteria enunciated in Rule 40C-2.301(3)-(6), Florida Administrative Code, and sections 9.0 et seq. and 10.0 et seq. of the Applicant's Handbook adopted by reference in Chapter 40C-2, Florida Administrative Code. Findings as to whether these criteria have been satisfied are set forth below. To obtain a renewal of a consumptive use permit, an applicant must first give reasonable assurance that the proposed use of water is a "reasonable beneficial use". For a use to be considered reasonable beneficial, the criteria enumerated in Rule 40C-2.301(4) and (5), Florida Administrative Code, must be satisfied. First, paragraph (4)(a) of the rule and section 10.3(a) of the handbook require that the water use must be in such quantity as is necessary for economic and efficient utilization, and the quantity requested must be within acceptable standards for the designated use. The evidence shows that FRI has used a reasonably low amount of water necessary to continue operations at the mine, it has implemented some water conservation methods and tried or considered others that proved to be inefficient or not economically feasible, and the requested amount of water is within acceptable standards for sand mines operating within the District. Then, too, some ninety-five percent of the water pumped from the wells is recirculated for reuse in the mining process or is recharged back into the surficial and Floridan aquifers on site. Finally, there is no surface discharge of water outside the mining site. Accordingly, it is found that this criterion has been satisfied. Paragraph (4)(b) of the rule and section 10.3(b) of the handbook require that the proposed use be for a purpose that is both reasonable and consistent with the public interest. The proposed use of the water is to produce sand used in construction materials. This is a reasonable use of water and results in an economic benefit to the region by producing a valuable product. Accordingly, it is found that the use is both reasonable and consistent with the public interest. All parties have stipulated that the Floridan aquifer is capable of producing the requested amounts of water. This satisfies paragraph (4)(c) of the rule and section 10.3(c) of the handbook which impose this requirement. The next criterion, paragraph (4)(d), as amplified by section 10.3(d) of the handbook, requires that "the environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount." The evidence shows that during mine operations, the surficial aquifer is being surcharged by up to five feet. When they cease, the water levels return to natural conditions. The maximum drawdown anticipated in the Floridan aquifer at the property boundary was 0.3 feet and less than or equal to 0.1 feet for most of the area outside the mine site. At most, this equates to a maximum lake level decline of 0.04 feet at Lake Brooklyn, 0.03 feet at Gator Bone and White Sands Lakes, and less than 0.03 feet at Spring Lake. Thus, FRI's usage of water has had, and will have in the future, little, if any, immediate or cumulative impact on the levels of the area lakes. Further, the more persuasive evidence supports a finding that these lowered lake levels or aquifer levels will not result in environmental or economic harm to the area. In addition, the District has proposed to incorporate into the permit a condition that FRI implement a detailed monitoring plan which will detect any overpumping causing lake level changes and a concomitant adverse impact to off-site land uses. Therefore, this criterion has been satisfied. Paragraph (4)(e) and section 10.3(e) require the applicant to implement "all available water conservation measures" unless the applicant "demonstrates that implementation is not economically, environmentally or technologically feasible." The rule goes on to provide that satisfaction of this criterion "may be demonstrated by implementation of an approved water conservation plan as required in section 12.0, Applicant's Handbook: Consumptive Uses of Water." Because FRI's water conservation plan insures that water will be used efficiently, as required by section 12.3.4.1. of the handbook, this criterion has been met. The next paragraph provides that "(w)hen reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally or technologi-cally feasible." Since the unrebutted testimony establishes that reclaimed water is not readily available to the mine site, it is found that paragraph (4)(f) has been satisfied. Paragraph (4)(g) of the rule and section 10.3(f) of the handbook generally require that the lowest acceptable quality water source be used. Since the evidence shows that the Floridan aquifer is the lowest acceptable quality water source, this requirement has been met. Paragraphs (4)(h) and (i) provide that the consumptive use "should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems" nor "cause or contribute to flood damage." The parties have stipulated that these requirements are not in dispute. The next paragraph provides that the "water quality of the source of the water should not be seriously harmed by the consumptive use." The uncontradicted evidence shows that the source of the water for the proposed use will not be seriously harmed from either saltwater intrusion or discharges to the Floridan aquifer. Paragraph (4)(j) and section 10.3(g) have accordingly been met. Paragraph (4)(k) and section 10.3(k) require that the water quality of the receiving body of water "not be seriously harmed" by the consumptive use. In this case, there is no surface water discharge from the mine site. Thus, the only relevant inquiry here is whether the receiving water (surficial aquifer) will be "seriously harmed" by the consumptive use. To determine compliance with this criterion, the District compared water quality samples from the mine site and surrounding areas with the DER monitoring network to ascertain whether state water quality numerical standards and natural background levels were exceeded. The relevant standards are found in Rule 17-520.420, Florida Administrative Code. Monitoring data from eight wells and from the dredge pond indicate there are no water quality violations resulting from the sand mine operations. Petitioner has contended that water from the dredge pond provides a significant source of water to an intermediate aquifer, which would also be a receiving body of water. However, the evidence shows that any contaminants resulting from the dredge pond flowing into an intermediate aquifer will also be contained in the surficial aquifer. The clays of the Hawthorn formation would absorb and filter out iron and manganese as they traveled to a water transmissive zone. Therefore, the concentrations sampled in the suficial aquifer downgradient from the dredge pond represent the highest concentrations. Since the concentrations in the surficial aquifer do not violate water quality standards, the same finding as to concentrations in the intermediate aquifer can be made. Further, the rule criteria require consideration of the future water use's effect on water quality, and if the intermediate aquifer is in fact a receiving water as contended by petitioner, the reactions which could cause water quality violations are presently occurring. There is no reason to believe they would cease if the mine ceases operation, and the mining operation adds oxygen to the water, which reduces the possibility of the reaction described. Therefore, this criterion has been satisfied. The parties have stipulated that the requirements of paragraph (4)(l) have been fulfilled. Finally, rule 40C-2.301(5)(a) provides that a proposed consumptive use will not meet the criteria for issuance of a permit if such proposed water use will significantly cause saline water encroachment or otherwise cause water flows or levels to fall below certain minimum limits set forth in the rule. The evidence shows that, to the extent these criteria are applicable and in dispute, they have been satisfied. Miscellaneous The contention has been made that insufficient site-specific information was submitted by the applicant to determine the effects of the proposed use of water at the sand mine. In this regard, the evidence shows that FRI consultants installed monitoring wells, performed core borings, and took soil samples at the site. The geology of the site was verified by core boring, review of geologic logs and drilling wells. Slug tests were performed to measure the hydraulic conductivity of the material in which the monitor wells were set, and a step drawdown analysis was performed to measure hydraulic conductivity. A number of monitoring wells to measure water levels data were installed before and after running the 1991 aquifer performance tests, and groundwater modeling in both the transient and steady state modes were run using data that was collected in the field. In addition, water quality samples were collected to evaluate a water budget for the dredge pond, and FRI conducted an assessment of the environmental impacts to the wetland and wildlife resources of the area lakes, including White Sands, Spring and Gator Bone Lakes. Besides this submission and analysis, the District reviewed United States Geological Survey (USGS) topographic maps, potentiometric maps and aerial photographs of the area, water levels of the surrounding lakes, potentiometric surfaces in Floridan and intermediate aquifer wells, geophysical logs for wells, rainfall records, the core generated by FRI consultants, and scientific literature relied upon in making consumptive use permitting assessments. It also monitored the 1991 aquifer performance test and reviewed the resultant model. Before and after submission of the application, the District conducted aquifer performance testing at the site and evaluated the 1991 aquifer performance test conducted by FRI consultants. Finally, the District assessed water quality impacts of the sand mine in 1989 and in the present by site visit, sampling of the Floridan production well and dredge pond, and reviewing sampling data from both monitor wells and homeowner wells. It also reviewed information on water quality data gathered from other sand mines and applied data from the DER background monitoring network. Therefore, the contention that insufficient site-specific information was submitted and considered is rejected. Petitioner has offered into evidence petitioner's exhibits 61, 64, 65, 71, 75, 76, 78-80, 82 and 83. A ruling on the admissibility of the exhibits was reserved. The exhibits, which are based on data collected by the District and the USGS, are hydrographs showing water levels from lakes and monitoring wells during so-called "normal mine operations" on selected dates in 1988, 1989 and 1991. Although FRI was given copies of the exhibits ten days prior to hearing, it was not informed of the source of the data until final hearing. As it turned out, petitioner's witness had reviewed records over an extensive period of time and selected two or three days out of that time period as being representative of "normal" conditions. However, FRI established that, when longer periods of time were reviewed, the correlations alleged to exist by the graphs did not in fact exist and thus they did not represent normal conditions. Attorney's fees and costs FRI has requested an award of attorney's fees and costs on the theories petitioner interposed various papers and brought and participated in this action for "an improper purpose" within the meaning of Subsections 120.57(1)(b)5. and 120.59(6), Florida Statutes. In addition, petitioner has filed a motion for sanctions on the ground four motions filed by FRI were filed for an improper purpose within the meaning of Subsection 120.57(1)(b)5., Florida Statutes. It may be inferred from the totality of the evidence that petitioner did not intend to participate in this proceeding for an improper purpose. Likewise, the same inference may be made with respect to the four motions filed by FRI. Therefore, fees and costs (sanctions) are not warranted for either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the District granting application number 2-019-0012AUR as proposed by the District in its notice of intent to approve the application issued on August 6, 1992. DONE AND RECOMMENDED this 4th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5017 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 2. 5-6. Partially accepted in finding of fact 6. 7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 8. 10-12. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. 15-16. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 11. 23-24. Partially accepted in finding of fact 7. 25. Partially accepted in findings of fact 7 and 8. 26. Partially accepted in finding of fact 7. 27-28. Partially accepted in finding of fact 14. Partially accepted in finding of fact 29. Partially accepted in finding of fact 11. 31-33. Partially accepted in findings of fact 14-16. 34-35. Partially accepted in finding of fact 15. 36-42. Partially accepted in findings of fact 14-16. Partially accepted in finding of fact 16. Partially accepted in finding of fact 31. Rejected as being irrelevant. Partially accepted in finding of fact 28. Partially accepted in finding of fact 33. Partially accepted in finding of fact 32. Partially accepted in finding of fact 23. Partially accepted in finding of fact 12. Partially accepted in finding of fact 14. 52-53. Partially accepted in finding of fact 11. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Rejected as being contrary to the more persuasive evidence. See finding 23. 57-58. Partially accepted in finding of fact 11. 59-61. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 11. 64-71. Partially accepted in findings of fact 32-36. 72. Partially accepted in finding of fact 11. 73-74. Partially accepted in finding of fact 6. 75. Partially accepted in finding of fact 8. 76-77. Partially accepted in findings of fact 8 and 11. Rejected as being contrary to the more persuasive evidence. See finding of fact 11. Partially accepted in finding of fact 8. Partially accepted in finding of fact 37. Partially accepted in finding of fact 11. Partially accepted in finding of fact 22. 83-120. Partially accepted in findings of fact 23 and 24. 121-139. Partially accepted in findings of fact 25-27. 140-144. Rejected since even if true, the impacts are not significant. 145. Partially accepted in finding of fact 18. 146-158. Partially accepted in findings of fact 18-20. 159-171. Partially accepted in finding of fact 39. 172-177. Partially accepted in findings of fact 40 and 41. Respondent (District): 1. Partially accepted in finding of fact 3. 2-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1, 3 and 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Partially accepted in finding of fact 9. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. 17-18. Partially accepted in finding of fact 7. 19-22. Partially accepted in finding of fact 11. 23. Partially accepted in finding of fact 37. 24-40. Partially accepted in findings of fact 12-16. 41-51. Partially accepted in findings of fact 11. 52-59. Partially accepted in findings of fact 23 and 24. 60-64. Partially accepted in finding of fact 25. Partially accepted in finding of fact 45. Partially accepted in finding of fact 23. 67-69. Partially accepted in finding of fact 11. Rejected as being unnecessary. Partially accepted in finding of fact 7. 72-73. Partially accepted in finding of fact 11. 74-77. Partially accepted in finding of fact 28. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. 80-81. Partially accepted in findings of fact 23 and 24. 82-83. Partially accepted in finding of fact 29. 84. Partially accepted in finding of fact 11. 85. Partially accepted in finding of fact 28. 86-90. Partially accepted in finding of fact 30. 91. Partially accepted in finding of fact 32. 92-94. Partially accepted in finding of fact 33. 95. Partially accepted in finding of fact 34. 96. Partially accepted in finding of fact 36. 97-100. Partially accepted in finding of fact 17. 101. Partially accepted in finding of fact 19. 102-103. Partially accepted in finding of fact 21. 104-121. Partially accepted in findings of fact 19 and 20. 122-130. Partially accepted in finding of fact 21. 131-133. Partially accepted in finding of fact 20. 134-138. Partially accepted in findings of fact 40 and 41. 139. Partially accepted in finding of fact 33. 140-141. Partially accepted in finding of fact 10. 142. Partially accepted in finding of fact 48. 143. Partially accepted in finding of fact 49. Respondent (FRI): Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 2 and 6. Partially accepted in finding of fact 11. Partially accepted in findings of fact 6 and 7. 7-8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Partially accepted in finding of fact 25. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 31. 22-24. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 35. 29-30. Partially accepted in finding of fact 36. 31-35. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 19. 40-41. Partially accepted in finding of fact 20. 42-45. Partially accepted in finding of fact 21. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. Partially accepted in findings of fact 40 and 41. 49. Partially accepted in finding of fact 39. 50-51. Partially accepted in finding of fact 42. 52. Partially accepted in finding of fact 43. 53. Partially accepted in finding of fact 44. 54. Partially accepted in finding of fact 45. 55. Partially accepted in finding of fact 46. 56. Partially accepted in finding of fact 47. 57-58. Partially accepted in finding of fact 49. 59. Partially accepted in finding of fact 51. 60. Partially accepted in finding of fact 52. 61. Partially accepted in finding of fact 54. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the more credible, persuasive evidence, or a conclusion of law. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Patrice Flinchbaugh Boyes, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Peter B. Belmont, Esquire 511 31st Street North St. Petersburg, Florida 33704 Wayne E. Flowers, Esquire Jennifer L. Burdick, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Marcia Penman Parker, Esquire Emily G. Pierce, Esquire 1301 Gulf Life Drive Suite 1500 Jacksonville, Florida 32207
The Issue Whether Respondent Sarasota County Public Utilities Department (Sarasota County) has provided reasonable assurances pursuant to Rule 17- 555.530(1)(a), Florida Administrative Code, that its proposed water treatment plant will comply with each applicable water quality standard contained in Part III, Chapter 17-550, Florida Administrative Code. Whether Respondent Sarasota County has provided reasonable assurance pursuant to Rule 17-555.530(1)(b), Florida Administrative Code, that its proposed water treatment plant meets adequate engineering design complying with the applicable engineering principles established in Rules 17-555.310 through 17-555.160, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: STIPULATED FACTS Sarasota County Utilities Department is a department established by Sarasota County, a political subdivision of the State of Florida and operates a public utility department which is charged with meeting, among other things, potable water needs of the residents of Sarasota County. At all times pertinent to the issues herein, HRS was responsible for receiving applications and issuing permits for the construction of water treatment plants and the accompanying well field. Petitioner, Charles P. Page, is a resident of Sarasota County and resides at 259 Glen Oak Road, Venice, Florida. Sarasota County filed an Application for a Water Treatment Plant Construction Permit with HRS seeking to construct a well water collection system and a 12 mgd - electrodialysis treatment plant having an auxiliary power system to provide power for the well field and water treatment plant. Sarasota County has previously obtained a water use permit from the Southwest Florida Water Management District (SWFWMD) #208836.00, restricting Sarasota County to feed water for the water treatment plant to 7,303,000.00 gallons average daily withdrawal and 9,625,000.00 gallons peak monthly withdrawal. Sarasota County has received permits for the eleven (11) production wells from HRS. It was the duty of HRS to review the plans and specifications and all supporting documentation to assure that they address and meet every requirement listed in Rule 17-555, Florida Administrative Code, for the issuance of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That a final order be entered issuing permit No. PATS No. 204307 & WC No. 1591-91-036 to Respondent Sarasota County, as set forth in the Notice of Intent To Issue dated February 20, 1992, provided that the grant of the subject permit shall include the general and specific conditions in the Intent To Issue with the further recommendation that the third required specific condition found on page 1 of the Specific Conditions be modified as follows: Construction of the electrodialysis reversal water treatment plant covered by this permit shall not begin prior to the issuance of a permit as required by State of Florida Department of Environmental Regulation for the EDR concentrate discharge facility. DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2002 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 22(47); 23(48); 24(19-20) 29(49); 38(5); 39(19); 42-43(19,20); and 51(49). 2. Proposed finding(s) of fact 2,3,5,6,7,11,14,15,16,18, 19,20,21,25,26,30,31,35,40,45,46,47,49,and 50 are neither material nor relevant to this proceeding or the conclusion reached in the Recommended Order. Proposed finding(s) of fact 4,8,9,10,12,13,17,27,28,and 41 are rejected as not being supported by competent substantial evidence in the record. Proposed finding(s) of fact 32,33,34,36,37, and 48 are unnecessary. Proposed finding of fact 44 is rejected as not being the "opinion" of the Hearing Officer. The transcript will show that the Hearing Officer was only restating the testimony of Judith Richtar. But see Finding of Fact 49. Rulings on Proposed Findings of Fact Submitted by the Respondent Sarasota County The following proposed findings of fact are adopted in substance as modified if the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 20(1) - 20, respectively); 21(27); 22 - 26(22 - 26, respectively); 27(28); 28(29); 29(31); and 30 - 44(32 - 46, respectively). For proposed findings of fact 45 through 65 see Findings of Fact 51 and 52. Proposed findings of fact 66 through 68 are unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Department of Environmental Regulation The Respondent Department of Environmental Regulation adopted Sarasota County's proposed findings of fact 1 through 44, 63 and 64, and 66 with modification. Therefore, the rulings on the Department's proposed findings of fact would be the same as the previous rulings on Sarasota County's proposed findings of fact adopted by the Department. COPIES FURNISHED: Bruce Wheeler Pitzer, Esquire 546 47th Street Sarasota, FL 34234 William A. Dooley, Esquire Nelson, Hesse, Cyril, et al. 2070 Ringling Blvd. Sarasota, FL 33237 Joseph W. Landers, Esquire Landers & Parsons 310 W. College Avenue, 3rd Floor Tallahassee, FL 32301 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether Georgia-Pacific Corporation is entitled to the issuance of an industrial wastewater facility permit under the National Pollutant Discharge Elimination System program that would authorize it to discharge industrial wastewater to the St. Johns River in Putnam County, Florida, and whether Georgia-Pacific Corporation has met the statutory criteria for a related administrative order for the interim discharge to Rice Creek in Putnam County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Respondent, Department of Environmental Protection (Department), is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of wastes to waters of the State. Under approval from the United States Environmental Protection Agency (EPA), the Department administers the National Pollutant Discharge Elimination System (NPDES) permitting program in the State. The Department also enforces specific water quality standards that have to be achieved in order to ensure protection of the designated uses of surface waters in the State. Respondent, Georgia-Pacific Corporation (Georgia- Pacific), owns and operates a bleached and unbleached kraft pulp and paper mill in Putnam County, Florida. The plant presently discharges treated wastewater to Rice Creek, a Class III water of the State, and a tributary of the St. Johns River. Petitioner, Putnam County Environmental Council, Inc. (PCEC), alleged in the Petition for Formal Administrative Hearing (Petition) that it is a non-profit Florida corporation headquartered in Palatka, Florida. However, other than a statement by one witness that PCEC was incorporated on an undisclosed date prior to the hearing, PCEC failed to present any evidence to establish its corporate status or residency in the State of Florida. According to the same witness, the organization was created in an unincorporated status in 1991, and it currently has 65 members who use and enjoy the St. Johns River for recreational purposes. Petitioner, Stewards of the St. Johns River, Inc. (SSJR), also alleged in the Petition that it is a non-profit Florida corporation with headquarters in Jacksonville, Florida. Like PCEC, SSJR failed to prove its corporate status or residency in the State of Florida. Although the number of members in SSJR is unknown, "many" of its members are boaters and "most" live along the St. Johns River. Petitioner, Linda Young, is Southeast Regional Coordinator for the Clean Water Network and a citizen of the State of Florida. As such, she has standing to "intervene" in this action under Section 403.412(5), Florida Statutes. In this complex case, the parties have presented extensive and conflicting evidence regarding the factual issues raised by the pleadings. In resolving the numerous conflicts in that testimony, the undersigned has accepted the more credible and persuasive evidence, as set forth in the findings below. The Applicant's Mill Operation Georgia-Pacific's Palatka mill was built in the 1940's before the establishment of Department water quality standards and classifications. Because of the nature of the pulping process, the mill has not been able to fully meet water quality standards in Rice Creek because of poor dilution. Georgia-Pacific receives wood chips from a sister facility and purchases residual chips from local wood products facilities. Those chips are separated into pine and hardwood, conveyed into the pulp processing facility, and loaded into digesters, that is, industrial-sized pressure cookers, which cook the chips for several hours. Pulp from the digesters goes to the brown kraft, bleached kraft, and tissue manufacturing facilities. Water in the manufacturing process is used, re-used, and recirculated until it cannot be used again, at which point it is conveyed into a primary wastewater clarifier, which is used to settle out fiber and other settleable solids. Additional wastewater sources are collected in sumps located in the facility, which are discharged into the primary clarifier. The underflow from the primary clarifier flows into a solids settling area (sludge pond) while the water from the primary clarifier passes into a secondary treatment system. The secondary treatment system uses aerobic and facultative biological treatment. Stormwater at the facility also flows into the treatment system. The secondary treatment system consists of four ponds in series: Pond 1, 485 acres, aerated with over 1600 horsepower of aeration; Pond 2, 175 acres, with 140 horsepower of aeration; Pond 3, 130 acres, with 120 horsepower of aeration; and Pond 4, 100 acres. Pond 4 is a quiescent basin, used to settle solids in the wastewater before discharge. The treatment system has a very long hydraulic detention time; once water enters the system, it remains there for 50 to 60 days. After treatment, a side stream of roughly 8,000,000 gallons per day of treated effluent is withdrawn, oxygenated with liquid oxygen, and discharged at two locations in Rice Creek: 3.4 miles upstream from the St. Johns River (Outfall D-001); and 2.4 miles upstream from the St. Johns River (Outfall D-002). Under low flow conditions, effluent from the Georgia-Pacific mill dominates the flow in Rice Creek. The Application Process Rice Creek is a small tributary of the St. Johns River, particularly in its upper reaches where Georgia- Pacific's effluent discharge occurs. Over the years, there have been exceedances of certain Class III water quality standards including specific conductance, color, and periodically whole effluent toxicity. Because of this, and during the permit review process, the Department began considering alternatives for mitigating or eliminating those existing concerns with the facility's discharge. In October 1992, Georgia-Pacific applied to the Department for the renewal of its existing wastewater discharge permit. In June 1994, Georgia-Pacific submitted an application to the Department for the construction and operation of an industrial wastewater treatment and disposal system. This application included a request to relocate Georgia-Pacific’s existing discharge to the St. Johns River. Because Georgia-Pacific submitted timely permit applications, it is authorized to continue operations based on an "administratively extended permit." In June 1994, Georgia-Pacific also applied to the EPA for a permit under the NPDES program. In October 1994, the EPA acknowledged receipt of a timely application for the renewal of Georgia-Pacific's existing NPDES permit, advising Georgia-Pacific by letter that its permit was automatically extended and that continued operation was authorized in accordance with the existing permit and 5 U.S.C. Section 558(c). On May 24, 1995, the Department advised Georgia- Pacific that the EPA had granted the Department the authority to administer the NPDES program and that its state permit and existing NPDES permit were deemed combined into one order. In response to a Department request, in November 1995, Georgia-Pacific submitted to the Department an antidegradation review for the relocation of its discharge. After Georgia-Pacific applied to the Department for a renewal of its NPDES permit, the Department directed Georgia-Pacific to provide alternatives that would ensure compliance with water quality standards. Georgia-Pacific submitted a proposal to construct a pipeline that would enable it to discharge its effluent to the middle of the St. Johns River. Under that proposal, Georgia-Pacific would achieve compliance with water quality standards as a result of greater dilution in the St. Johns River. Based on a review of Georgia-Pacific's submittal, the Department determined that Georgia-Pacific could in fact achieve water quality standards by constructing a pipeline to the St. Johns River. Likewise, the EPA concluded that Georgia-Pacific could receive a permit to discharge to the St. Johns River through a pipeline, without additional process improvements. Although the Department concluded that compliance could be achieved solely by the construction of a pipeline, it began discussions with Georgia-Pacific and EPA in order to examine other approaches that might lead to compliance in Rice Creek. These discussions culminated in a decision that Georgia-Pacific would invest substantial funds in the installation of additional technology and also be assured of some ultimate means to achieve compliance with water quality standards. On May 1, 2001, the Department issued a Notice of Intent to Issue an industrial wastewater permit, together with an Order Establishing Compliance Schedules Under 403.088(2)(f), Florida Statutes (the Administrative Order). In late January 2002, Georgia-Pacific submitted a request to the Department asking for consideration of two changes to the proposed permit: first, a request to relocate a groundwater monitoring well; and second, a request to review the Department's proposed mixing zone in the St. Johns River for the transparency standard. The Department also proposes a minor change in permit conditions to allow approval of the bleach plant monitoring plan to take place within sixty days after the issuance of the final permit. Both of Georgia- Pacific's requests were reviewed by the Department, and it has recommended that they be included in the proposed permit. Technology-Based Effluent Limits and Water Quality- Based Effluent Limits When considering a permit application such as the one here, the Department reviews the application to determine compliance with technology-based effluent limits (TBELs) and water quality-based effluent limits (WQBELs). TBELs are minimum industry standards that all facilities must meet regardless of their discharge location. They are predominantly production-based, and they limit the mass of pollutants that may be discharged based on the mass of product produced. Those limits generally reflect EPA's assessment of the industry standard regarding what can be met in a given discharge. In the preparation of a permit, the Department practice is to first determine the TBELs that would apply. In contrast, a WQBEL reflects how low the discharge must be (or how effective treatment must be) for a given parameter to meet water quality standards. Relief mechanisms such as mixing zones are inherent in WQBELs. A WQBEL is necessary only for those parameters for which there is a reasonable potential for the facility either to exceed the water quality standard or come close to exceeding the standard. As a matter of agency practice, the Department does not impose a limit unless there is a reasonable potential to exceed a standard. In order to determine whether there is such a reasonable potential for exceeding a standard, the Department will review past operations and other information it may have regarding the characteristics of the discharge. For a discharge such as the one proposed in the present case, a "Level II" WQBEL is required. The Department's Point Source Section, with expertise in the field of water quality modeling, analyzes the Level II WQBEL. Georgia-Pacific must meet certain technology-based standards, such as those set forth in the Cluster Rule. The Cluster Rule has been promulgated by the EPA and adopted by the Department and requires the installation of technologies to eliminate the use of elemental chlorine in the bleaching process. The Palatka facility far exceeds (performs better than) technology-based effluent limits. In March 1998, the Department created a document titled "Level II Water Quality Based Effluent Limitations for the Georgia Pacific Corp. Palatka Mill" (the WQBEL Technical Report]. The WQBEL Technical Report has a typed notation on the title page reading "March 1998 -- Final." The WQBEL Technical Report contained the following effluent discharge limitations: The following are the effluent limitations for the Georgia-Pacific Palatka mill discharge to the St. Johns River based upon results from the Level II WQBEL. Review comments from EPA Region 4 are included in the correspondence section. Parameter Limitation Discharge 60 MGD Daily Maximum BOD5 Summer (June 1 - November 30) 3,500 lbs/day maximum thirty day average Winter (December 1 – May 31) 7,170 lbs/day maximum thirty day average TSS Summer (June 1 - November 30) 5,000 lbs/day maximum thirty day average Winter (December 1 – May 31) 10,000 lbs/day maximum thirty day average Dissolved Oxygen 2.7 mg/l minimum Specific conductance 3,220 umhos/cm daily maximum Un-Ionized Ammonia Nitrogen Summer (June 1 - November 30) .11 ug/l daily maximum Winter (December 1 – May 31) .13 ug/l daily maximum Iron (Total Recoverable) 2.91 mg/l daily maximum Cadmium (Total Recoverable) 3.46 ug/l daily maximum Lead (Total Recoverable) 5.87 ug/l daily maximum Zinc (Total Recoverable) 480 ug/l daily maximum When the WQBEL Technical Report was approved in 1998, the Department's Northeast District Office did not prepare a separate formal notice of approval. The WQBEL Technical Report was transmitted by memorandum from the Water Quality Assessment Section to the Department's Director of District Management for the Northeast District on April 13, 1998, where it remained on file. The WQBEL Technical Report complied with the plan of study previously approved by the Department, and it met the requirements of Rule 62-650.500, Florida Administrative Code. Both the Department and EPA staff concurred with the approval of the WQBEL Technical Report. They agreed that the construction of a pipeline and the relocation of the discharge to the St. Johns River would yield a net environmental benefit without additional process improvements. Upgrades Implemented and Required in the Proposed Agency Actions As described more fully below, Georgia-Pacific has modified its production and treatment processes in such a manner as to improve its overall environmental performance. In installing some of those modifications, Georgia-Pacific undertook what was required by federal and state law. For others, Georgia-Pacific has exceeded what it was required to do under state or federal law. To comply with the Cluster Rule, Georgia-Pacific eliminated two bleach plants and installed a new bleach plant, one which uses chlorine dioxide as opposed to elemental chlorine. The implementation of this technology is primarily aimed at eliminating the mechanism for the formation of dioxin in the bleaching plant. Compliance with the Cluster Rule generally requires, among other things, conversion to an elemental chlorine-free bleaching system. Georgia-Pacific is in compliance with the Cluster Rule. Under the Cluster Rule, Georgia-Pacific is required to sample for dioxin at its bleach plant, with a limit of under 10 picograms per liter. Georgia-Pacific has experienced reductions in the color of its effluent as the result of the chlorine dioxide conversion as well as reductions in specific conductance. The reductions in specific conductance are particularly significant because Georgia-Pacific has decreased its effluent flow, which would ordinarily increase specific conductance in the absence of additional improvements. After conversion to chlorine dioxide, Georgia- Pacific began monitoring for parameters defined by the Cluster Rule. In that monitoring, Georgia-Pacific has tested "non- detect" for dioxin and chlorinated phenolics. Specifically, Georgia-Pacific has monitored dioxin in its effluent, as well as within its process –- before dilution with other wastewater –- and the monitoring results at both locations are likewise "non-detect" for dioxin. Furthermore, levels of chloroform and adsorbable organic halides (AOX) have been well within the limits imposed by the proposed permit and the Cluster Rule. Georgia-Pacific has voluntarily agreed to install by April 15, 2006, an oxygen delignification system, or a like system that produces similar or better environmental benefits. Oxygen delignification is a precursor to bleaching, which removes lignins from the fiber before the product is bleached. This process is significant because lignin consumes chemicals, impedes bleaching, and prohibits achieving brightness targets in the bleach plant. The cost associated with the oxygen delignification system is $22,700,000. This commitment is reflected in the proposed Administrative Order and Permit. Oxygen delignification has been identified as having significant benefits in terms of reducing the color and specific conductance of effluent. Georgia-Pacific voluntarily agreed to install by August 15, 2003, a new brownstock washing system to replace four existing brownstock washing lines. A brownstock washer is a piece of equipment that washes organics away from fiber, after pulping and before oxygen delignification. The cost of this equipment is approximately $30,000,000. This commitment is reflected in the Administrative Order and Permit. The new brownstock washers are not required by Department rules, but they will be helpful in reducing the specific conductance of effluent. Georgia-Pacific has also voluntarily agreed to install a green liquor dregs filter. This system would remove dregs from the effluent system and reduce specific conductance and color in the effluent. The cost of the green liquor dregs filter is $1,100,000. This commitment is reflected in the Administrative Order and Permit. Under the proposed agency action, Georgia-Pacific is likewise required to install additional equipment for the implementation of its best management practices program to minimize leaks and spills in the process sewer. This equipment, including controls on the brownstock washer system, and the installation of a spill control system, pumps, and piping, has been installed at a cost of $7,100,000. Georgia-Pacific has also optimized the performance of its treatment system through the relocation of its aerators in the treatment ponds and modifying its nutrient feed system. This has led to reduced levels of biological oxygen demand (BOD) in the discharge, as well as improved treatment for total suspended solids. In addition, Georgia-Pacific has voluntarily installed a reverse osmosis system to recycle certain internal streams, which in turn has led to reductions in specific conductance, at a cost of $3,300,000. To comply with the proposed agency actions, Georgia- Pacific expects to expend a total of approximately $170,000,000 for upgrades for the purpose of producing environmental benefits. Additional money is earmarked for other environmental performance issues, such as water conservation. Except for technology-based limits adopted by rule, the Department does not dictate how a facility achieves compliance with water quality standards. Georgia-Pacific demonstrated that its environmental performance is substantially better than required by technology-based limits. Based on the foregoing, it is reasonable to find that Georgia-Pacific’s commitments to process improvements will lead to a general improvement in water quality in the receiving waters. Relocation of the Discharge As noted above, because of the minimal dilution available in Rice Creek, Georgia-Pacific has never been fully able to achieve water quality standards in Rice Creek, a Class III water body. Rice Creek continues to exceed water quality criteria for specific conductance and color; historically, the discharge had experienced exceedences for the chronic toxicity criterion. Under present conditions, with Georgia-Pacific discharging to Rice Creek and Rice Creek flowing to the St. Johns River, elevated levels of color are experienced along the shoreline of the St. Johns River in the area of existing grass beds. Modeling shows that under current flow conditions from Rice Creek, those color effects are observed on the northwest bank near the confluence of Rice Creek with the St. Johns River. If the discharge is relocated to the St. Johns River and discharged near the river bottom through a diffuser, it will beneficially change the distribution of color impacts both to Rice Creek and the St. Johns River. Color in Rice Creek will improve, returning to its background color of 100 to 150 platinum cobalt units (pcu). Specific conductance within Rice Creek will also be markedly reduced. Because the input will occur in the middle of the St. Johns River, with higher flows and greater turbulence, there will no longer be relatively highly colored water flowing along the shoreline. Therefore, the relocation will provide a significant benefit of moving highly colored water away from grass beds and will mitigate against any existing effects on those grass beds. It is beneficial to relocate discharges to the middle of a stream, as opposed to the edge of a shoreline, where effluent tends to hug the shoreline. Therefore, regardless of the process improvements, there will be a net environmental improvement by relocating the discharge to the middle of the St. Johns River The discharge from the proposed diffuser will be comparatively benign, in comparison to the present flow from Rice Creek into the St. Johns River. This is because the effluent would not reach or hug the shoreline in such a scenario but rather would be diluted in rising to the surface, as well as by its lateral movement in the direction toward the river bank. The relocation of the discharge to the middle of the St. Johns River will cause improvements through localized changes in concentrations near the diffuser and the confluence of Rice Creek and the St. Johns River. Based on the foregoing, it is found that Georgia- Pacific’s proposed discharge into the St. Johns River will not result in water quality degradation, but will instead lead to a general improvement in water quality. Proposed Conditions in the Permit and Administrative Order Before certifying completion of the required manufacturing process improvements, Georgia-Pacific is required to submit to the Department a report on its ability to optimize the modifications, as well as a separate report which would determine whether Georgia-Pacific can meet certain limits that would enable a continuing discharge to Rice Creek. If the water quality improvements are sufficient to achieve standards in Rice Creek, the permit would be reopened and Georgia-Pacific would be required to maintain the present discharge location to Rice Creek. Otherwise, Georgia-Pacific would be authorized to construct the pipeline to the St. Johns River. The permit is drafted so that Georgia-Pacific will verify the need for mixing zones, as well as the dimensions of proposed mixing zones, after process improvements are complete. The Administrative Order imposes interim effluent limitations during the compliance period described in that Order. The Administrative Order contains "report-only" conditions for certain parameters. For those parameters which do not have interim limits, there is no appropriate standard to apply because information on effluent and water quality conditions is incomplete. The Department also found it unreasonable to impose interim limits that will be met only after Georgia-Pacific completes the improvements requested by the Department. Under Department practice, it is reasonable to impose "report only" conditions for parameters when it is unclear whether the discharge for the facility presents a concern for potential exceedences of water quality standards. In addition, "report only" conditions are used when a facility is undertaking an effort to address problems for certain parameters during a period necessary to achieve compliance. The proposed permit includes mixing zones in the St. Johns River for dissolved oxygen, total recoverable iron, total recoverable cadmium, total recoverable lead, un-ionized ammonia, turbidity, and specific conductance. The length of each of those mixing zones is 16.5 meters, that is, limited to the rise of plume. A mixing zone is also required for transparency, which will require a length of 734 meters. Within 12 months after certifying completion of the manufacturing process improvements, Georgia-Pacific will be required to re-evaluate the need for mixing zones and effluent limits and re-open the permit as necessary to include final mixing zones, effluent limits, and monitoring requirements. Compliance with Ambient Water Quality Standards The Petition contends that Georgia-Pacific has not provided reasonable assurances that it would comply with the following standards: nutrients (paragraph 18); dissolved oxygen (paragraph 20); chronic toxicity (paragraph 21); total suspended solids (paragraph 23); iron (paragraph 25); and phenolic compounds (paragraph 26). Although no water quality standard is directly applicable, Petitioners also addressed the following water quality issues: biological oxygen demand (BOD) (paragraph 20); dioxin, "related compounds," chlorinated organics, AOX, and chemical oxygen demand (COD) (paragraph 22); color (paragraph 24); and total suspended solids (TSS), which is alleged to include total organic carbon (TOC) (paragraph 94). Petitioners asserted that dioxin, chlorinated organics, TSS, and AOX are significant in considering compliance with the "free-from" standard in Rules 62- 302.500(1) and 62-302.530. In determining whether water quality standards will be met, those allegations should only be considered in reference to those adopted standards for the "free-from" standard. The effluent data establishes that Georgia-Pacific will consistently meet the proposed permit limits for discharge to Rice Creek. Georgia-Pacific's treatment facility has the capacity to comply with the proposed permit limits for discharge to Rice Creek, and there is a very high degree of assurance that it has the capability to comply with those standards in the future. In addition, Georgia-Pacific's treatment facility is able to meet the WQBELs established for discharge into the St. Johns River. Evaluation and modeling demonstrate that if a discharge to the St. Johns River is undertaken, the St. Johns River will meet Class III water standards at the edge of the mixing zone if Georgia-Pacific complies with its proposed effluent limits. Also, the effluent will meet all applicable effluent guidelines and technology-based standards adopted in the Florida Administrative Code. The effluent will not settle, form deposits, or create a nuisance, and it will not float as debris, scum, or oil. Finally, the effluent will not produce color, odor, taste, or other conditions so as to create a nuisance. Georgia-Pacific performed an analysis to determine the effluent limits that would be necessary to achieve water quality standards. This analysis included water quality modeling, which is a method of summing up inputs and losses, calculating the amount of material in a system, and determining the concentration of a substance. The model was used to geometrically represent the St. Johns River, Etonia Creek, and the reach of the St. Johns River within the study area, which extended from Buffalo Bluff (15 miles upstream of the confluence of Rice Creek and the St. Johns River) to Mile Point 50. Rice Creek enters the St. Johns River at Mile Point 74. When a model is performed, the model will yield estimates or predictions of concentrations throughout a water body. Those predictions can be compared to field observations and measurements; if the model is done properly, the calculated numbers should agree with the measured numbers. Modeling is used to evaluate future conditions based on hypothetical future changes to the system. The modeling methods and advanced time-variable models employed by Georgia- Pacific's consultants were approved by the Department. Georgia-Pacific prepared a plan of study to obtain field data in the St. Johns River for the purpose of assuring that the models would simulate observed concentrations of constituents. The Department approved that plan of study and published a notice of approval. The Department also approved the quality assurance project plan for the collection of water quality data in Georgia-Pacific's modeling efforts. After approval of the plan of study and quality assurance project plan, Georgia-Pacific's consultants performed water quality surveys in November 1994 and May 1995. The models employed by Georgia-Pacific's consultants were calibrated and produced the observed water quality results. The proposed diffuser would be located about one foot from the bottom of the channel. As designed, the plume would leave the proposed diffuser and spread out, with the upper part of the plume going to the surface of the water. The plume model calculates the dilution at the centerline of the plume, where there would be a minimum of dilution. This method of using the centerline as a reference point leads to a conservative analysis, and it would require the Applicant to achieve more dilution than might otherwise be necessary to achieve water quality standards. For regulatory purposes, the Department usually uses the maximum height of the rise of the plume to determine a mixing zone, the point at which concentrations along the centerline of the plume would level off. Because of that practice, for certain parameters where the required mixing zone is less than the distance of the rise of the plume, a decrease in effluent limits would not lead to a decrease in the size of the mixing zone. Tidal actions will cause re-entrainment, that is, the movement of dissolved substances back into the plume area. This factor reduces the dilution factor that otherwise would apply to the system. This factor is accounted for in modeling by tying in a diffuser computation to a water quality model. The modeling employed by Georgia-Pacific assumes 7Q10 conditions, that is, a conservative assumption that flow is equal to the lowest one-week average for a ten-year period, where there is little dilution. The employment of this conservative method would minimize the probability of exceedences in the receiving water body. The projection employed by Georgia-Pacific's consultants was even more conservative because the 7Q10 flow rate is assumed to apply through a 60-day average flow, a condition that may never occur, and would not be expected to occur once in ten years. In contrast, the use of time-variable simulations would lead to less stringent permitting requirements. The permit provides reasonable assurance that the construction, modification, or operation of the treatment system will not discharge or cause pollution in violation of Department standards. The permit provides reasonable assurance that, based on the effluent limitations determined by the Department in the WQBEL Technical Report, water quality standards would be met outside the area of the proposed mixing zone for specific conductance, dissolved oxygen, un-ionized ammonia, iron, cadmium, lead, and zinc. Based on additional analysis as reflected in Georgia-Pacific's proposed amendment to the draft permit, Georgia-Pacific would achieve compliance with the transparency standard with the mixing zone described in its proposed amendment, that is, with a total length of 734 meters. The chronic toxicity criterion is a biological measurement which determines whether organisms are impaired by effluent. If impairment is demonstrated, the test does not indicate what component of the effluent is causing the effect. Georgia-Pacific is required to conduct testing for acute and chronic toxicity twice a year. Current tests undertaken in May and October 2001 are representative of effluent conditions after Georgia-Pacific undertook conversion of the bleach plant to chlorine dioxide. Those tests demonstrate that Georgia-Pacific is in compliance with the acute and chronic toxicity criterion since the conversion to chlorine dioxide bleaching. Georgia-Pacific is also in compliance with the biological integrity standard, based on the most recent fifth-year inspection. Because of the flow characteristics and the characteristics of pulp mill effluent, the pollutants associated with the effluent are not assimilated as the effluent travels from the point of discharge, through Rice Creek, to the St. Johns River. The particulates associated with pulp mill effluent are so small or fine that they will remain in suspension and thus not settle out in Rice Creek. In addition, because Rice Creek is channelized, there is no sloping side that would enable the growth of vegetation that would filter the water. Furthermore, even if there was a sedimentation process occurring in Rice Creek, no additional sedimentation would occur after the system reaches an equilibrium point. Although Rice Creek does cause a small decrease in BOD through oxidation, Georgia-Pacific has compensated for that factor by the injection of oxygen in the effluent. Thus, the direct piping of effluent to the St. Johns River (as opposed to a discharge into Rice Creek, which flows into the St. Johns River) would not result in any significant increase in pollutant loading to the St. Johns River. In addition, the construction of a pipeline would take place only after additional technologies have been implemented to maximize pollutant reduction. Compliance with the Reasonable Assurance Standard Georgia-Pacific has provided reasonable assurances for the proposed permit to be issued for a discharge into the St. Johns River. This finding is based upon Georgia-Pacific's ability to meet the effluent standards described in the draft permit, and modeling results demonstrating that, with the proposed mixing zones for certain parameters, a discharge into St. Johns River, as designed, will not result in a violation of Class III standards. Mixing Zones In Section H of their Petition, Petitioners challenged the proposed mixing zones set forth in the proposed Permit. Petitioners generally alleged that the proposed mixing zones were "enormous" and that they failed to comply with certain rules restricting mixing zones. In their Petition, Petitioners articulated three theories to support the proposition that the mixing zones were illegal: first, that the mixing zones would include a nursery area of indigenous aquatic life, including beds of aquatic plants of the type listed in Rule 63-302.200(16); second, that the mixing zone, by itself, would lead to a violation of the minimum criteria in Rule 62-302.500; and third, that the mixing zones, or a combination of those mixing zones, would result in a significant impairment of Class III uses in the St. Johns River. Petitioners were authorized to amend their Petition to add additional allegations to paragraphs 17 and 67 of their original Petition regarding the mixing zone. Under those amendments, Petitioners alleged that Georgia-Pacific’s proposed amendment to the draft permit would (a) improperly expand the mixing zone; (b) fail to account for the length of the diffuser; (c) improperly substitute "transparency" for "color"; and (d) prevent isolation of transparency impacts from color in the discharge. However, there is no evidence which ties those allegations to any regulatory standard that would affect the proposed agency action. Petitioners also contended that color was a surrogate for chemical oxygen demand, as well as for substances that are alleged to cause chronic or acute toxicity. However, as shown by the testimony of Department witness Maher, the permit condition for "color" was a surrogate only for the transparency standard. No evidence to support a contrary inference was presented. Petitioners also made general allegations that the proposed mixing zones are illegal, without a clear indication of what is deemed illegal about the mixing zones. Although the Petition includes a general argument in opposition to mixing zones, Petitioners were unable to suggest a legal basis for alleging that the mixing zones were illegal. For example, Petitioners alleged that certain mixing zones are enormous but failed to articulate why they are so enormous as to be illegal. They did not allege that the Department had erred by allowing a larger mixing zone than Georgia-Pacific should have received under applicable rules. Indeed, such a position would be antithetical to Petitioners' allegations that Georgia-Pacific had failed to achieve water quality standards for a number of parameters. The accepted testimony establishes that Georgia-Pacific's proposed mixing zones will comply with Department rules. No persuasive evidence was presented to the contrary. Because the effluent quality will differ from present conditions after completion of the process improvements, the proposed mixing zones will not be final until after process improvements have been made, the operation has been stabilized, and the mixing zones have been re- verified. No mixing zones are authorized in the Administrative Order. The Administrative Order contains a table setting forth potential mixing zones that are used as a benchmark to determine whether Georgia-Pacific can meet water quality standards in Rice Creek. The table sets out a series of hypothetical mixing zones at 800 meters, that is, the maximum presumptive distance afforded without additional relief mechanisms. Because no mixing zones are proposed to take effect in Rice Creek, there can be no issue of "illegal" mixing zones in Rice Creek. Within a range of potential discharge flows, from 20 MGD to 60 MGD, water quality standards will be met within the area of the proposed mixing zones for all parameters for which mixing zones are required. Mixing zones are allowed by Department rules and are considered a part of Florida water quality standards. In the context of the Department's permitting review, if a modeling analysis shows that the concentration of a pollutant in effluent is greater than the water quality criterion, the Department will determine if the amount of dilution in the receiving water is sufficient to assimilate the pollutants of concern. The Department will then determine either the length (in the case of a river) or area (in the case of an estuary) of a water body that would be necessary to achieve compliance through dilution. Based on chloride levels, the St. Johns River at the area of concern would not be considered an estuary under Department rules. Each of the proposed mixing zones would be less than 800 meters in length (as allowed by Department rule) and less than 125,600 square meters in area (a limitation that would apply only if the area was an estuary). The proposed discharge will comply with all minimum rule requirements with respect to mixing zones, such as those for dissolved oxygen, turbidity, and the absence of acute toxicity. Likewise, the proposed mixing zones will not impact any nursery areas for indigenous aquatic life. Nutrient Issues In Section I, Petitioners contested the Department's decision to not require effluent limits to prevent a violation of the narrative water quality criterion for nutrients. For reasons addressed in the undersigned's Order dated February 14, 2002, that issue is waived based because of Petitioners' failure to file a timely challenge to the WQBEL Technical Report. In addition, based on the findings set out below, Georgia-Pacific has provided reasonable assurances that it will not violate the narrative standard for nutrients. Further, the evidence shows that effluent limits for nutrients are not presently warranted. Petitioners presented testimony that the St. Johns River may be nitrogen-limited or phosphorous-limited at different times of the year, which means that concentrations of one or the other would limit algae growth at different times of the year. Relative light levels, as well as the penetration of light, also affect algae growth. Georgia-Pacific’s treatment system requires the addition of ammonia because ammonia or nitrate is a necessary nutrient for the growth of bacteria in the treatment system. Ammonia and nitrate are both nutrients. Although there can be a conversion from one form to the other, that conversion does not affect the net loss or gain of nutrients. Although nutrient issues are of concern to water bodies, it is absolutely necessary in a biological treatment system to have sufficient nutrients for the operation of the system to treat parameters such as BOD. The Georgia-Pacific facility is achieving a high level of treatment while managing its system at a minimum level of nutrient addition. Management of a treatment system requires attention not only to the influent and effluent, but also monitoring of conditions within the system itself to assure adequate treatment. Georgia-Pacific is continuing to refine its procedures for doing so. The State has adopted what is referred to as the "5- 5-3-1" (advanced wastewater treatment) limitation for municipal treatment plants that discharge to surface waters. This standard refers to five milligrams per liter for BOD, five milligrams per liter for suspended solids, three milligrams per liter for total nitrogen, and one milligram per liter for total phosphorous. This limitation has been in effect for many years and remains one of the most stringent state standards in the nation. Georgia-Pacific's facility would be in compliance with those standards for nitrogen and phosphorous. Effluent from the Georgia-Pacific mill increases the concentration of total nitrogen in Rice Creek, relative to background conditions. However, because of the relatively higher flow of the St. Johns River, when the load from the mill is transported to the St. Johns River, the increase in nitrogen concentration is so small as to be imperceptible. Nitrogen loading from Georgia-Pacific's Palatka mill on a long-term average (prior to upgrades of its treatment plant) has been measured at 1,196 pounds per day. The average loading at Buffalo Bluff, which is far upstream of Rice Creek and the Georgia-Pacific Palatka mill, is 36,615 pounds per day. Additional nonpoint sources contribute approximately 12,000 pounds per day in the study area. Thus, the loading from the Georgia-Pacific mill represents a 2.4 percent increase in nitrogen levels on the St. Johns River, a difference that cannot be measured. The largest point source of nutrients in the lower St. Johns River is the Buckman wastewater treatment plant in Duval County. That facility does not have nutrient limits on its discharge permit. Rice Creek does not provide any treatment (as opposed to dilution) for nitrogen in Georgia-Pacific's effluent. A review of probability distributions for nitrogen concentrations upstream and downstream of Rice Creek demonstrated that Rice Creek had no influence on nitrogen levels in the St. Johns River. Phosphorous concentrations from the effluent, if discharged to the St. Johns River, would dilute rapidly, decreasing to .2 milligrams per liter within the water column, five to six feet below the surface, after discharge from the diffuser, below the area in which light is absorbed at the surface of the water column. Chlorophyll-A is a parameter that is typically used as a measure of phytoplankton in the water column. Concentration distributions for chlorophyll-A at Buffalo Point (upstream of Rice Creek) matched concentrations for the same parameter at Racey Point, a station far downstream of Rice Creek. This analysis confirms that the inputs coming into the St. Johns River System from Rice Creek do not have a significant influence on the water quality of the St. Johns River, with respect to nutrients. With a discharge coming directly to the St. Johns River, and with nutrient loading being the same as from Rice Creek, the nutrient loading would not influence the St. Johns River. The Department does not have sufficient information at the present to impose a nutrient limit on Georgia-Pacific. The draft permit accounts for this issue through a re-opener clause which would authorize a limit when that information is available, if such a limit is necessary. Allegations Regarding "Deformities in Fish" Section J of the Petition includes allegations that Georgia-Pacific failed to provide reasonable assurances regarding adverse physiological response in animals under Rule 62-302.530(62), and that Georgia-Pacific has failed to provide reasonable assurances that its discharge will not be mutagenic or teratogenic to significant, locally occurring wildlife or aquatic species, or to human beings, under Rule 62- 302.500(1)(a)5. Petitioners suggest that the permit cannot be granted as proposed because it lacks effluent limits for (unstated) substances that are alleged to create potential violations of the free-from standard. This argument is barred as a matter of law for the reasons stated in the Order dated February 14, 2002. In addition, based on the following findings, this argument has been rejected because Georgia- Pacific has met the reasonable assurances standard without effluent limits on those unstated (and unknown) substances that are alleged to cause violations of those rules. Petitioners presented evidence that paper mill effluent in general contains chemicals which could cause the masculinization of the females in certain fish species, as well as hormonal effects in males. However, witness Koenig did not offer any testimony that Georgia-Pacific’s effluent, in particular, contained such chemicals. Dr. Koenig had collected no data and had not conducted any field studies in Rice Creek to support his testimony; rather, he relied on articles published by others and provided by Petitioner Linda Young. In agency practice and interpretation of the free- from standard in Rule 62-302.530(62), Florida Administrative Code, the question of whether a change is adverse depends on the overall community or population of that particular species. Tellingly, Petitioners did not present any competent evidence, through Dr. Koenig's testimony or otherwise, that Georgia-Pacific's effluent presents the potential for adverse effects on the overall community or population of any species. Dr. Koenig testified at length from his reading of studies performed by other scientists regarding changes in the hormone levels and gonadosomatic index (the relative weight of gonads) of fish in the St. Johns River in the vicinity of Rice Creek. In his testimony, Dr. Koenig relied on two published articles to address conditions in the vicinity of Rice Creek, both of which were primarily authored by M. Sepulveda. One of those articles showed hormonal changes taking place in a laboratory study where largemouth bass were exposed to mill effluent. That study also showed a change in the gonadosomatic index in the subject fish. Dr. Koenig did not offer any opinion that such changes would be adverse or that they would affect the reproduction of those fish. The other study was a field study with samples of fish at various regions in the vicinity of Rice Creek. This study did not include any fish from Rice Creek, but did include fish from the confluence of Rice Creek and the St. Johns River, as opposed to reference streams. The study showed lower levels of hormones in fish from the area of that confluence, but also showed similar effects at a reference stream 40 kilometers away. No testimony was presented to support the inference that the effects represented in the two studies were adverse, within the meaning of the free-from rule. Moreover, the data from those two studies were collected in 1996, 1997, and 1998, or before Georgia-Pacific converted its bleach plant to chlorine dioxide bleaching in March 2001. Therefore, Dr. Koenig had no data to support any theory that under current effluent conditions, Georgia-Pacific is producing or will produce compounds that would cause any changes of hormone concentrations in fish. With respect to the phenomenon of fish masculinization in Rice Creek, Petitioners' experts had no data to support a competent opinion on this subject. To support his testimony, Dr. Koenig only read one article that purported to demonstrate fish masculinization in 11-Mile Creek and the Fenholloway River, and one letter from an employee of the St. Johns River Water Management District [Young Exhibit 8A] that referred to "external anatomical anomalies" near Georgia-Pacific discharge points. The article attached to that letter and included in Young Exhibit 8A addressed data collected in Escambia County, and does not address conditions in Rice Creek. Petitioners attempted to present the theory that the potential for endocrine disruption or fish masculinization resulting from paper mill effluent would violate the free-from standard. As a condition to issuance of the permit, the Department proposes to require Georgia-Pacific to obtain approval of a plan of study to analyze the potential for significant masculinization effects from the discharge. Under the proposed conditions, Georgia-Pacific is required to determine the minimum concentration at which such effects may be detected. By its terms, the proposed permit may be reopened to adjust effluent limitations or monitoring requirements if the masculinization study shows a need for them. Department witness Brooks acknowledged a general concern for endocrine disruption resulting from paper mill effluent. In particular, Mr. Brooks referred to studies which showed that paper mill effluent could cause the elongation of an anal fin in the females of certain fish species. However, Mr. Brooks observed that although this appeared to be a physiologic response, there was no evidence or reason to believe that this effect was an adverse effect. Reports regarding masculinization, that is, the elongation of anal fins in female fish, are suspect because (among other reasons) the studies do not account for variances that would be expected based on the independent variables of sex, age, and growth. In any case, the data from those reports do not demonstrate significant, adverse effects in exposed populations. A critical and unbiased review of the published literature shows that impacts of masculinization are biologically interesting but preliminary in nature. Department witness Maher observed that the masculinization effect occurs naturally, and that the Department's plan of study is intended to determine whether this natural phenomenon becomes problematic or is enhanced by activity at the mill. Initial information reviewed by the Department indicates that the phenomenon is no longer experienced when a mill converts to a chlorine dioxide (ECF) bleaching process, as Georgia-Pacific has done in converting to ECF. According to witness Brooks, the observed effect known as "fish masculinization" is not confirmed to result from endocrine disruption. The Department has concluded that it has reason to be concerned about the potential for fish masculinization. From the Department's viewpoint, it is not clearly understood what is causing this effect. It has been shown that there is a direct relationship between concentration (or dilution) and the observation of those effects. This conclusion is consistent with Dr. Koenig's testimony, which observed a decline in observed effects based on the dosage or concentration of effluent. The Department has reviewed evidence showing that, with dilution, the effect of fish masculinization "go[es] away." In the Department's analysis of the fish masculinization issue in the present permit, the Department is requiring process improvements that would reduce this phenomenon, if it exists, in Rice Creek. In addition, if the discharge is relocated to the St. Johns River, the additional dilution would ameliorate the concern regarding fish masculinization, and the phenomenon will "go away." To give an even higher level of assurance that the resource will be protected, the Department is requiring a study to evaluate and confirm that the issue is resolved. The process changes required in the permit, the potential for further dilution in the St. Johns River if it becomes necessary, and the evaluations required in the permit condition render it very likely that any potential for fish masculinization will be mitigated. Thus, to the extent that fish masculinization could be deemed a violation of the free- from standard, Georgia-Pacific has provided reasonable assurances that it will not cause the masculinization of fish in the St. Johns River. Petitioners did not offer any credible evidence establishing that any specific compound or substance would cause the alleged effects of endocrine disruption or fish masculinization. Indeed, Dr. Koenig acknowledged that he was unable to find in his literature search the mechanism or chemical that is alleged to cause fish masculinization. Likewise, Petitioners were unable to suggest any concentration of that substance which would lead to those alleged effects. Dr. Koenig expressed a belief that chlorinated organic compounds from the paper manufacturing process may be responsible for endocrine disruption. Dr. Koenig also opined that within the general process of paper manufacturing, the bleaching process in particular was a concern. To the extent that Dr. Koenig may have had a concern regarding endocrine disruption from his review of studies performed using data from 1996 through 1998, it is reasonable to conclude that this concern is ameliorated by Georgia-Pacific's conversion to chlorine dioxide bleaching in March 2001. There is no evidence to establish a relationship between the presence or absence of dioxin and fish masculinization. Compliance with Dissolved Oxygen Standard (and BOD Concerns) In Section K, Petitioners disputed whether Georgia- Pacific had provided reasonable assurance of compliance with the adopted dissolved oxygen standard. The proposed permit contains different permit limits for BOD for winter and summer, because the impacts of discharges are different during those parts of the year. Georgia-Pacific has shown a substantial downward trend for BOD. The Georgia-Pacific facility discharges mass loadings of BOD at quantities which are much less than what is required to meet discharge standards. A review of effluent data shows that even for the worst period for performance, Georgia-Pacific's effluent was well below the proposed permit limits for BOD. A review of BOD discharges over the period of January 2000 to August 2001 demonstrates a consistent ability of the facility to meet the proposed permit limits, as well as a general trend of improvement that reflects Georgia-Pacific’s upgrade of the treatment system. Georgia-Pacific will meet the minimum standards for dissolved oxygen in mixing zones. With additional process improvements, Georgia-Pacific will also experience additional environmental benefits in the reduction of chemical oxygen demand. N. Dioxin and "Related Compounds" As to dioxin, Petitioners alleged in Section L of their Petition that Georgia-Pacific may discharge dioxin in concentrations that could cause a violation of the free-from standard. The proposed permit includes a permit condition for a plan of study to assess levels of "TCDD" and "TCDF" in fish tissue in the receiving waters. Department witness Brooks was unaware of any regulatory authority to require fish tissue sampling for dioxin. Department engineer Kohn was also uncertain of any regulatory authority for the Department to test for dioxin in fish tissue. Mr. Kohn agreed with the proposition that when a proposed permit condition is not specifically authorized by rule or statute, the condition must be withdrawn if the applicant objects. However, in this case, Georgia-Pacific did not object to the inclusion of a permit limit of .014 picograms per liter of dioxin in its final effluent. As noted above, Georgia-Pacific established that under its current effluent conditions, following conversion to chlorine dioxide bleaching, the facility is "non-detect" for dioxin. The Department does not have any adopted standards for fish tissue concentrations. Petitioners presented very little evidence of dioxin concentration in fish tissue following Georgia-Pacific's conversion to ECF bleaching, and they opposed the introduction of such data into evidence. A review of available data shows that there was not a statistically significant difference between the level of bioaccumulation of dioxin in fish tissue in Rice Creek versus a reference creek. The Florida Department of Health has concluded, based on review of prior fish tissue data, that a fish consumption advisory for Rice Creek was not warranted. Total Suspended Solids In Section M, Petitioners have alleged that TSS in the effluent would cause various environmental problems. However, Petitioners did not allege that TSS in the effluent would lead to a violation of water quality standards, and they did not present any accepted testimony or other evidence to support such a theory. There is no adopted water quality standard for TSS. According to the WQBEL Technical Report, effluent levels of TSS are generally comparable to background levels in the St. Johns River. The primary wastewater clarifier is designed to remove fiber or other settleable solids from the effluent before it travels to the secondary treatment system. Total suspended solids in Georgia-Pacific's effluent are primarily derived from biota in the treatment system, rather than fiber from the industrial process. Georgia-Pacific has shown a substantial downward trend for TSS. The facility reliably discharges TSS at quantities which are much less than what is required to meet proposed effluent limits. A review of discharge data for TSS demonstrates that Georgia-Pacific would perform in full compliance with the proposed permit limits. Petitioners presented no evidence to the contrary. Petitioners likewise presented no evidence to quantify any impacts from TSS. Color, the Transparency Standard, and Related Issues Petitioners have also alleged that the color in Georgia-Pacific's effluent would lead to nuisance conditions in violation of Rule 62-302.500(1)(a). However, they did not allege any potential violation of the one parameter traditionally associated with effluent color: the Department's transparency standard. Elevated levels of color in the effluent reduces the ability of light to penetrate into the water column, with potential effects on the growth of aquatic plants. This is translated into a "compensation point," that is, the water depth at which the light level reaches one percent. The state transparency standard prohibits a discharge from causing a decrease in the compensation point of more than ten percent, relative to natural background. The rate of decrease of light within a water column is related to increased color levels. Analysis performed by Georgia-Pacific's consultants shows that a ten percent change in compensation depth corresponds to a seventeen percent increase in color above natural background levels. Under the proposed permit, color was used as a surrogate, or alternative measure, for compliance with the transparency standard. Color was not used as a surrogate for any parameter other than transparency. Georgia-Pacific will, with additional process improvements, see additional environmental benefits in reducing the color of its effluent. For the purpose of the application, Georgia-Pacific's modeling analysis assumed that based on process improvements, its effluent would have a color of 1202 pcu. EPA's technical team had opined that Georgia- Pacific would, with process improvements, achieve a reduction in color to 500 pcu. Georgia-Pacific had opined that the improvements would achieve a color of 1202 pcu. Department witness Owen opined that the color reduction would be in a range between those two figures. Petitioners did not present any contrary evidence as to the ability of additional process improvements to reduce effluent color. Accordingly, using the most conservative (least optimistic) figure, Georgia-Pacific has provided reasonable assurances that before a discharge to the St. Johns River would be authorized, it will reduce the color of its effluent to 1202 pcu. The proposed permit takes into account the potential that Georgia-Pacific's process improvements will achieve greater improvements in color than anticipated. Under the proposed permit, the Department would reduce the size of the proposed mixing zone if Georgia-Pacific demonstrates that the color of its effluent is lower than projected. The modeling analysis further demonstrates that based on a discharge to the St. Johns River, assuming an effluent color of 1202 pcu, the change in compensation depth is greater than ten percent in the vicinity of the proposed diffuser. A 734-meter mixing zone for transparency would be required for a discharge to the middle of the St. Johns River. The required area for such a mixing zone is 64,000 square meters. Antidegradation Review In Section P, Petitioners have generally alleged that the Department failed to conduct a proper antidegradation analysis. More specifically, they alleged that the proposed discharge would reduce the quality of the receiving waters below the classification established for them. Because Georgia-Pacific presently discharges to Rice Creek, and because a separate relief mechanism (the Administrative Order) authorizes the discharge to Rice Creek, it appears that the antidegradation issues relate solely to the proposed discharge into the St. Johns River. If the relocation had resulted in degradation of the receiving water, the Department would have regulatory authority in its Rule 62-4.242(1)(c) to consider whether Georgia-Pacific could minimize its discharge through other discharge locations, the use of land application, or reuse. However, Petitioners failed to allege in their Petition that the Department misapplied that regulatory authority. Moreover, under Department practice, when a new discharge or relocation of a discharge will result in an environmental benefit, it is not necessary to conduct a review of other discharge options. The Department undertakes an antidegradation analysis in, among other scenarios, cases where a discharge will result in achievement of minimum water quality standards for a given designated use but will lead to an incremental lowering of water quality. The purpose of this analysis is to assure that the societal benefits of the discharge outweigh the cost of that incremental lowering. The proposed permit will not lead to the increase in discharge of any parameter, and the permit is more stringent and adds additional parameters or limits. In addition, there is a trend of improved performance for the treatment system. In the present case, the Department has concluded that the proposed project will result in a significant improvement in water quality by the reduction of pollutants associated with exceedences of water quality standards in Rice Creek. Regardless of whether the discharge remains in Rice Creek or is relocated to the St. Johns River, the proposed Permit and Administrative Order will lead to an improvement in water quality as opposed to a degradation of water quality. Based on improvements with respect to specific conductance parameters, the ability to relocate the discharge into the middle of the St. Johns River where better mixing will occur (relative to the confluence of Rice Creek), and anticipated improvements in grass beds, the proposed pipeline will lead to a net environmental benefit in the St. Johns River and Rice Creek. The project as set forth in the proposed Permit and Administrative Order will be clearly in the public interest because it will result in full achievement of water quality standards and full compliance with the designated use of the receiving water body. The project will result in a substantial reduction in pollutant loading in Rice Creek and the St. Johns River, regardless of the whether the discharge will be located in Rice Creek or in the St. Johns River. The Department adequately evaluated other discharge locations, alternative treatment, and disposal alternatives. Studies, including a land application pilot project, demonstrated that land application was not feasible based upon impacts to groundwater resources. In their Petition, Petitioners did not dispute the Department's analysis of those factors under applicable rules. Given these considerations, it is found that Georgia-Pacific has provided reasonable assurances that it will meet water quality standards, and it is evident that Georgia-Pacific will not reduce the quality of the St. Johns River below its Class III designation. Further, the proposed discharge will be clearly in the public interest for the purpose of antidegradation analysis. Further, the proposed discharge into the St. Johns River is important to and beneficial to the public health, safety, and welfare, taking into account the policies set forth in Rules 62-302.100 and 62-302.300, Florida Administrative Code. The proposed discharge into the St. Johns River will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Instead, the proposed discharge would provide a benefit to fish and wildlife, and their habitats. No persuasive evidence was presented that the proposed discharge to the St. Johns River would adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Indeed, the record demonstrates a beneficial effect as to those factors. The proposed discharge has not been shown to be inconsistent with the applicable Surface Water Improvement and Management Plan (SWIM plan). Rather, the evidence shows that the proposed discharge would promote the implementation of the applicable SWIM plan. Monitoring Issues Section Q in the Petition generally challenged the adequacy of proposed monitoring requirements. As to this issue, the monitoring conditions imposed in the proposed permit are sufficient to ensure compliance with the proposed permit. Petitioner Young's witness Gilbert agreed that the proposed monitoring conditions were adequate to determine the result of process changes, that the proposed monitoring conditions were comprehensive, and that those conditions were beyond what the Department normally required. The Department does not propose to engage in water quality sampling at the end of the diffuser or at the edge of the mixing zone because of the technical difficulties associated with such an endeavor. Instead, the process for determining compliance is to determine the condition of the effluent and simulate water quality conditions of the receiving water body under low-flow conditions (when the river would be most vulnerable to pollution discharges). Such an approach is more protective because it eliminates variables that may not be representative of worst-case conditions. The evidence shows that the size of Georgia- Pacific's facility renders it impracticable for Georgia- Pacific to compromise the integrity of sampling results, as suggested by Petitioners. Flow Limitations In their Petition, Petitioners also contended that the proposed agency action violates Rules 62-4.240(3)(a) and 62-620.310(9)(a) by failing to specify the volume of discharge or flows. Under Department practice, flow must be specified but is not necessarily limited. Flow was adequately specified in the proposed permit, where the facility is described as 40 MGD wastewater treatment facility with a 22 MGD expected average flow. Volume limits are indirectly set through the establishment of a mixing zone and through mass loading limits in the permit, such as the loading limits for BOD and suspended solids. When flow is increased and the concentration of the effluent remains constant, the flow would be limited by the mass limits in the permit. Furthermore, the pipe and diffuser will have a hydraulic limitation, that is, a physical limitation on the amount that can physically be discharged. The pipeline and diffuser are hydraulically limited to 60 MGD based on the current design. Over a ten-year period, Georgia-Pacific has shown a trend toward reduced effluent flow. For example, in 1991, Georgia-Pacific discharged just under 40,000,000 gallons per day (GPD). In 2001, the discharge was less than 24,000,000 GPD. As a result of water conservation measures, Georgia- Pacific has been able to achieve a substantial reduction in effluent flow even when it experienced increased storm water flow into the treatment system. Because of stormwater inputs into the treatment system, it is very difficult to set a flow limit on the discharge from a pulp and paper mill. Indeed, the Department does not typically impose volume limits on NPDES permits for pulp and paper mills. Where volume or flow limits are imposed on pulp and paper mills, they are necessary in order to assure compliance with a specific standard. The Administrative Order Georgia-Pacific has submitted plans and a reasonable schedule for constructing, installing, or placing into operation an approved pollution abatement facility or alternative waste disposal system. No contrary evidence was presented, and no alternative construction schedule was proposed by Petitioners. In assessing a schedule to achieve compliance, the Department considered the time necessary to construct additional improvements as well as the reasonableness of the time period in light of Georgia-Pacific's capital investment. As part of this analysis, the Department also considered Georgia-Pacific's commitment to go beyond what they were legally required to do in environmental upgrades. The schedule of compliance is reasonable, given the cost and magnitude of the improvements required of Georgia-Pacific. Georgia-Pacific needs permission to continue its discharge to Rice Creek for a period of time necessary to complete research, planning, construction, installation, and operation of an approved and acceptable pollution abatement facility or alternative waste disposal system. The time period described in the Administrative Order will enable Georgia-Pacific to maximize the operation of the process improvements in order to determine if the discharge can meet water quality standards in Rice Creek. Given the cost and magnitude of the improvements required in the permit and Administrative Order, the schedule of compliance set forth in the Administrative Order is reasonable. There is no present, reasonable alternative means of disposing of wastewater other than to discharge it into waters of the State. In their Petition, Petitioners contested the Department's general antidegradation analysis but did not allege that any alternative means of disposal were improperly overlooked. The Department does not have specific regulatory authority to require facilities such as Georgia-Pacific to consider re-use as part of its antidegradation analysis, as it does with domestic waste discharges. Nonetheless, the Department did look at re-use and land application and determined that they were not feasible alternatives. Although it was not specifically required to do so by rule, Georgia- Pacific had exhausted every reasonable means to re-use (rather than discharge) water from its facility. Under earlier authorizations, Georgia-Pacific was not required to achieve standards for color, conductance, and chronic toxicity in Rice Creek. The granting of an operation permit will be in the public interest. This is because Putnam County will suffer an adverse economic impact if the facility is shut down and there will be net environmental benefits achieved through compliance with the requirements set forth in the Permit and Administrative Order. The Permit requires Georgia-Pacific to submit a written report to the Department if it appears that a mixing zone is needed for chronic whole effluent toxicity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order (1) issuing proposed permit number FL0002763 to Georgia-Pacific Corporation, as set forth in Department Exhibit 175, and with the change in the permit conditions as requested in Georgia-Pacific Exhibit 102 and proposed by the Department during the hearing, and (2) approving Administrative Order No. 039-NE as set forth in Department Exhibit 176. DONE AND ENTERED this 3rd 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 3rd day of July, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Timothy Keyser, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, No. 107 Cape Coral, Florida 33904-9604 Jessica C. Landman, Esquire 1200 New York Avenue, Northwest Suite 400 Washington, D.C. 20005 Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Teri L. Donaldson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Francine M. Ffolkes, Esquire Thomas R. Gould, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
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.
