The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1999.
Findings Of Fact The subject application requests a water use permit from the Central and Southern Florida Flood Control District (FCD) for the supplemental irrigation of 145 acres of citrus lands located in Orange County. Received into evidence at the hearing were the public notice of hearing appearing in the Sentinel Star, permit application number 21424 with an attached report and the Staff Report of the FCD, prepared by Nagendra Khanal. The applicant requested an annual allocation of water in the amount of 120.15 acre-feet or 9.94 inches per year, for a period of twenty (20) years. The Staff Report recommends the issuance of a permit for said amount, with maximum monthly pumpages not to exceed 49.8 acre-feet or 4.13 inches, the permit to expire on January 15, 1978. Several further special provisions were recommended on pages 4 & 5 of the Staff Report, which report is attached hereto. There is no dispute between the applicant and the FCD over the technical aspects of the Staff Report. The protests of the applicant center around the length of the permit and some of the special provisions recommended in the Staff Report, which the applicant feels are vague and ambiguous. Mr. James A. Hinson, the applicant's corporate secretary, felt that the FCD had sufficient data and statistics as to the water resources and agricultural usage within the area to sustain the granting of a twenty year permit. It was further felt that the issuance of a two-year permit for the purpose of gathering information as to the quantity of use would tend to prompt higher usage and even lead to falsification of pumpage records on the part of agricultural users so as to assure the issuance of future permits. The applicant was also concerned with the costs of applying for another permit in two years. Mr. Nagendra Khanal, a hydrologist with the FCD, explained that the purpose of the two-year permit was to obtain information from agricultural users in the area as to the amount of water used and the effect of such usage on the Florida aquifer system. Since the outset of regulatory provisions, the FCD has set the same termination date for each permit for agricultural use within each of the basins. At that expiration time, the pumpage records for all users in the area will be established and present experimental estimates can then be compared with actual usage. Little is known by the FCD about how the Florida aquifer system operates and the data presently in use are experimental. Since all permits within each basin will expire on the same date, the entire basin can then be evaluated at one point in time. It was felt that if falsification of pumpage records were to occur, it could probably be detected by data currently available to the FCD. It was further opined by Mr. Khanal that at, the expiration date of all permits issued in each basin, an automatic conversion into new permits would occur at little or no cost to the applicant. With regard to the special provisions recommended in the Staff Report, Mr. Hinson expressed concern over the manner of compliance. Specifically, he desired more information on the type of equipment or devises required by the FCD when it calls for "minimum head pressures", and "a measuring device on each of the three wells." He also desired information as to the times of year the water quality analyses were to be performed. Mr. Khanal explained that no regulatory criteria had been established by the FCD with regard to pumpage and that the minimum type of measuring device, such as a time clock, on each of the wells would suffice. Further specifications will be supplied to the applicant upon request. It was explained by Khanal that the water quality analyses should be performed once before the rainy season (at the end of May) and once after the rainy season (at the end of October). There was some confusion over the inclusion of the parameter of "specific conductivity" within the definition of a standard complete water quality analysis. Finally, Mr. Khanal listed two amendments to be made in the Staff Report. On page 2, under "B. Existing Facilities", "3,500 gpm" should read "3,600 gpm." The last item on the chart on page 3 of the Staff Report should read "2 in 10 Year Drought" in lieu of "1 in 10 Year Drought."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Application No. 21424 be granted and that a permit be issued in accordance with the recommendations and provisions set forth in the Staff Report, as amended. Due to the apparent confusion over the inclusion of "specific conductivity" as a parameter to be included within the definition of a standard complete analysis, it is further recommended that the Staff make further inquiry into its necessity. If the Staff then concludes that "specific conductivity" is necessary to obtain a complete water quality analysis, it is recommended that it remain on the list of parameters. Respectfully submitted this 5th day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1976 COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Akerman, Senterfitt, Eidson and Wharton 17th Floor CNA Building Orlando, Florida Stephen A. Walker, Esquire Post Office Box V West Palm Beach, Florida 33402
The Issue The issue in this case is whether Bocilla Utilities, Inc. is entitled to a public drinking water construction permit for the expansion of an existing reverse-osmosis water plant located on Don Pedro Island.
Findings Of Fact Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s for the purpose of supplying water to a residential development being developed by some or all of the principals of the water utility. The residential development is on a bridgeless barrier island in Charlotte County. Applicant initially proposed locating the plant on the mainland with submerged pipes to the island. This proposal was approved by the Army Corps of Engineers and Department of Environmental Regulation, but the Trustees of the Internal Improvement Trust Fund denied Applicant's request for an easement across submerged state lands. After failing to obtain a submerged land easement, Applicant obtained the permits to build a reverse-osmosis (RO) water plant at its present location on the barrier island. Included among the permits was a permit from the Department of Natural Resources dated September 11, 1985, allowing Applicant to construct the water treatment plant, two underground concrete water storage tanks, and a tennis court on top of the tanks up to 100 feet seaward of the coastal construction control line. Applicant is a certificated utility that, since September 1994, has been regulated by the Public Service Commission. It was previously regulated by Charlotte County. By Application for a Public Drinking Water Facility Construction Permit filed January 26, 1995 (Application), Applicant requested a permit to expand the treatment capacity of its water plant from 30,000 gallons per day (gpd) to 120,000 gpd. By installing the new treatment equipment in two stages, the plant would have an immediate capacity of 60,000 gpd. Applicant proposes no material changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment. The Application form asks Applicant to identify any well construction permits obtained from the water management district and to provide a map showing any sanitary hazards within 500 feet of each proposed well. The Application form requires Applicant's professional engineer to attest that the project complies with Chapter 62-555, Florida Administrative Code. The Engineering Report attached to the completed Application supplies the requested information, but explains that Applicant's hydrogeologist had not, as of the date of the report, obtained the well-construction permits from the water management district. By Intent to Issue dated February 27, 1995, the Department of Environmental Protection (DEP) gave notice of its intent to issue the requested permit. Noting that it has permitting jurisdiction under Section 403.861(9), Florida Statutes, and that the project is not exempt, DEP determined that a public drinking water construction permit is required for the proposed work. The Intent to Issue is based on DEP's belief that reasonable assurances have been provided to indicate that the proposed project will not adversely impact water quality and the proposed project will comply with the appropriate provisions of Florida Administrative Code Rules 62-4, 62-550, 62- 555 and 62-699. Petitioners timely objected to the issuance of the proposed permit. Petitioners reside in Applicant's certificated area on the barrier island. They presently obtain their water from private wells or cisterns, rather than Applicant. If the permit were granted so as to expand Applicant's production capacity, Petitioners would be more likely required to obtain water from Applicant due to Charlotte County's mandatory hookup ordinance. About a week before filing the Application, Applicant applied on January 20, 1995, to the Southwest Florida Water Management District (SWFWMD) for permits for the construction of the two wells included in the draft permit. SWFWMD granted these permits on February 8, 1995, about three weeks after receiving the applications. Consistent with its normal practice in granting well-construction permits, SWFWMD did not provide interested persons with a point of entry to challenge the permits. The SWFWMD permits provide in part: Compliance with state and local county health regulations as per Chapter 17-555, Florida Administrative Code (F.A.C.), is required via the Drinking Water System Permit. Compliance with Chapters 17-532 and 17- 555, F.A.C., on construction standards and grouting procedures for Public Supply Wells shall be followed. * * * This well site has been judged as satisfactory based on the location and information provided to [SWFWMD] at the time of the well site inspection. . . . * * * Public Supply Wells must meet certain setback requirements from all potential sources of contamination. To obtain and retain your Drinking Water System Permit, please coordinate any future development of the surrounding property within 200' of your well site with the Charlotte County Health Department. * * * By letter dated February 14, 1995, from a SWFWMD representative to Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted Applicant a setback variance of 100 feet from nearby septic systems in permitting the two new wells. The letter states that the "variance is based upon the known geohydrology of the area and the proposed construction of the wells," as well as an understanding that the "existing public system is working out with no problems." A month later, a letter from a DEP engineer identifies various types of sanitary hazards and implicitly ratifies the setback variance granted by SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards as septic tank systems, sewer lines, swimming pools and associated chemicals, pet excretions, and residential chemicals such as pesticides, fertilizers, paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had granted a variance from 200 feet to 100 feet "due to geologic and treatment conditions," but cautions that "any further decrease in setbacks for sanitary hazards would be imprudent." Applicant's water plant is located on Don Pedro Island, which is part of an island chain consisting, from north to south, of Knight Island, Don Pedro Island, and, usually, Little Gasparilla Island. The low-lying island chain fronts the Gulf of Mexico on the west. The northern end of the island chain abuts Lemon Bay on the east. Over the years, storms have opened and closed passes at various points along the island chain. The island chain is vulnerable to flooding, and some areas are more vulnerable than others. One of the historic passes is Bocilla Pass. The plant site area is about a half mile south of this now-closed pass. The Gulf beaches on either side of the point at which the Bocilla Pass emptied into the Gulf have suffered considerable erosion in recent years, to the point that recently built homes have been inundated by water and had to be removed or razed. The plant site area includes the building housing the water treatment and other equipment, two 50,000-gallon storage tanks immediately to the west of the building, the existing water supply well located just east of the building, and the two proposed water supply wells located a short distance east and south of the building. The existing storage tanks, which mark the westernmost extent of the plant site area, are about 235 feet east of a pronounced erosion line along the Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately adjacent to the tanks is the building housing the water treatment equipment. The two proposed wells would be located about 200 and 450 feet south of the tanks. The plant site area is much closer to water on the east. The southerly proposed well is about 12 feet west of the mean high water line of Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the mean high water line of Bocilla Lagoon. The building housing the water treatment equipment is further away from the water, but still less than 50 feet. Bocilla Lagoon is a long and narrow waterway that was dredged in a north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed off by land less than a quarter of a mile south of the plant site area. The lagoon runs to the north to connect to what remains of Bocilla Pass, which then runs easterly a short distance to a dredged extension of Lemon Bay. The building housing the water treatment equipment and the storage tanks are not located in the vulnerable FEMA V[elocity] zone. However, the record does not establish the location of the proposed wells relative to the V- zone. Testimony concerning the location of the V-zone relative to the water plant establishes only that the building, not the two proposed wells, are safely outside the V-zone. Nothing in the record establishes contour lines on the barrier island in the vicinity of the plant site area or the elevation of the land at the site of the two proposed wells. Applicant has recently upgraded the security of the storage tanks through the addition of locks to the manholes. The installation of fences is impractical and unnecessary because the tanks are topped by a six-inch, reinforced slab of concrete that also serves as tennis courts. The proposed wells would be well constructed. They would extend 167 feet into a confined artesian aquifer. The concrete pressurized grouting coupled with a potentiometric surface of seven feet make it unlikely that the wells would be vulnerable to contaminants. During severe-storm conditions, pumping would cease, leaving the system in its naturally pressurized state, so that surface water could not easily flow down into the well. Additionally, the RO filtration technology is one of the most effective at eliminating contaminants from drinking water. However, failing to have shown that the two proposed wells are outside the V-zone, Applicant has also failed to provide reasonable assurances that the two proposed wells would be protected from damage from the velocity wave action associated with the V-zone. Applicant has constructed and operated the water plant in an exemplary fashion. Applicant has at all times met or exceeded applicable standards for water quality, safety, and operations. Original construction exceeded minimum requirements and added to the durability of the fixtures. The building housing the water treatment equipment and hydropneumatic tank has been issued a floodproofing certificate by a registered engineer. The certificate states that, with human intervention in the form of bolting predrilled plywood boards over openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD. Applicant employs an operations manager with a Class A license rather than one with merely a Class C license, even though only a Class C operator is required for a water plant of this size. Also, Applicant maintains a low-level chlorine indicator, even though not required to do so due to the small size of the utility. The relevant sewage flows from the quantity of water that would be drawn by each proposed well would be greater than 2000 gpd. Near the proposed wells are single- and multi-family residences served by on-site sewage disposal systems, the above- described road, a swimming pool on the other side of the road, an injection well, and the treatment plant at which Applicant stores anti-scaling agents, ammonia, chlorine, and acid. However, Applicant has shown that none of these items is within 100 feet of the proposed wells. Bocilla Lagoon is not a sanitary hazard at this time. The two deficiencies in Applicant's proof relate solely to the susceptibility of the proposed wells to a significant risk of damage from flooding and other disasters and the location of the proposed wells relative to areas least subject to localized flooding. In all other respects, such as fire flow and security, Applicant has provided reasonable assurances that the applicable criteria would be satisfied or that the proposed work would have no bearing on the issue raised by Petitioners.
Recommendation It is RECOMMENDED that the Department of Professional Regulation enter a final order denying the application of Bocilla Utilities, Inc. for a public water supply construction permit. ENTERED on August 25, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on August 25, 1995. APPENDIX Rulings on Respondents' Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant and repetitious. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as unsupported by the appropriate weight of the evidence and legal argument. (except last sentence): rejected as subordinate, recitation of testimony, and irrelevant. 8 (last sentence): adopted or adopted in substance. 9: rejected as irrelevant. 10: adopted or adopted in substance, except to extent of legal argument as to effect of action of SWFWMD in granting variance. 11-12: rejected as irrelevant. 13 (except last sentence): adopted or adopted in substance. 13 (last sentence): rejected as irrelevant. 14-17 (except last sentence): adopted or adopted in substance. 17 (last sentence): rejected as legal argument. 18-21: adopted or adopted in substance. 22: rejected as unnecessary. 23: adopted or adopted in substance as to protection from only sanitary hazards. 24-26: adopted or adopted in substance as to description of aquifer, proposed well construction, and efficiency of RO filtration process, but not as reasons in support of Paragraph 23. 27 (first sentence): adopted or adopted in substance. 27 (remainder): rejected as unnecessary. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30-31: adopted or adopted in substance. 32: rejected as irrelevant. 33-40: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert Starr P.O. Box 5337 Grove City, FL 34224 Betty Brenneman P.O. Box 67 Placida, FL 33946 Jim Duff P.O. Box 41 Placida, FL 33946 M. Christopher Bryant Oertel Hoffman P.O. Box 6507 Tallahassee, FL 32314-6507 Thomas I. Mayton, Jr. Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2440
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
The Issue The issues to be resolved in this proceeding concern generally whether the Respondents named above are liable for the contamination and violations alleged in the Petitioner, Department of Environmental Regulation's (DER) Notice of Violation and Amended Notice of Violation, pursuant to the relevant provisions of Chapter 403, Florida Statutes, and the rules contained in Title 17, Florida Administrative Code, as relevant to this proceeding and treated herein.
Findings Of Fact DER is an agency of the State of Florida charged, under Chapter 403, Florida Statutes, and related rules, with preventing and alleviating environmental contaminations, as pertinent hereto, including such issues involving ground waters of the State of Florida. The property in question in this proceeding is located at the northwest corner of Blount and Guillemard Streets in Pensacola, Florida. The legal description of that property and the state of the title of the property is as described in the Prehearing Stipulation filed by the parties at page two thereof. The Belleaus are the current owners of the real property at that location. Crown is the owner and operator of a commercial laundry and dry cleaning business situated on that property in the building(s) located thereon. Crown is a corporation authorized to do business in the State of Florida and is a "person" within the meaning of Section 403.031(5), Florida Statutes. American Linen is a corporation authorized to conduct business in the State of Florida and is also a "person" within the meaning of that Statute. American Linen obtained the property by purchase by corporate warranty deed from Rentex (RCD) on April 23, 1979. It operated a commercial laundry at the property from that date until June 3, 1985, when it sold the laundry business to Crown and the real property upon which it operated to the Belleaus. In November of 1971, RCD, a Delaware corporation and a 100 percent-owned subsidiary of Rentex Services corporation (RSC), also a Delaware corporation, acquired the property. RCD owned and operated a commercial laundry and dry cleaning business on the property until April 23, 1979, on which date it sold the laundry business and property to American Linen. It actually operated a dry-cleaning service on the property during only 1974 and early 1975. Sketchley Delaware, Inc. (SDI), a Delaware corporation, purchased RSC, which then became a 100 percent- wholly-owned subsidiary of SDI in 1982. RCD, however, remained a 100 percent-wholly-owned subsidiary of RSC until 1983. In March of 1983, SDI merged with RSC, and the resulting corporation was named "Sketchley Services, Inc." RCD continued as a corporation, 100 percent-wholly-owned as a subsidiary of Sketchley. In October of 1983, RCD merged into Sketchley, and Sketchley survived. Respondent Sketchley has never held title to nor conducted any form of business on the property in question. On March 29, 1991, Sketchley was renamed "Jura Services, Inc." (Jura) and was converted to a close corporation under Delaware law. This controversy had its origins in May of 1986 when a representative of DER performed a routine sampling of tap water at the DER district office in Pensacola. Those samples were subjected to chemical analysis which revealed the presence of PCE, a widely-used solvent often associated with dry-cleaning operations. That tap water came from the public water supply for the City of Pensacola, supplied by a network of potable water wells. Upon learning of the PCE content in the water supply, DER began an investigation to attempt to locate its source. Analysis of a number of the Escambia County Utilities Authority (ECUA) wells (PW-6, PW- 8, PW-9, and east well) contained quantities of PCE in excess of the maximum contaminant levels for drinking water authorized by DER's rules. Those wells were taken out of service in June of 1986, subjected to carbon filtration which ultimately removed the PCE from the water supply for those wells, and the wells have since been put back in public service. A ground water investigation was undertaken by DER to determine the source of contamination in the upper portion of the sand and gravel aquifer and in the production zone of the deeper Floridian aquifer which supplies those wells. A total of 29 ground water monitoring wells (MW) were installed and sampled. An analysis of these was prepared (87-04 report). On February 7, 1987, DER and representatives of the utilities authority and Crown, the operator of the laundry facility, conducted an inspection and clean-out of the surge tank located in the floor of the Crown laundry building. A chemical analysis of three samples of liquid residue in the bottom of the tank revealed the presence of PCE in those sediments in concentrations of 1,952 parts per billion (PPB), 108.5 PPB, and 50 PPB. Additionally, one of the samples revealed trichloroethene at 34 PPB and 1, 2 dichloroethene at 52,800 PPB. Under certain conditions, these last two-named compounds are produced as bi-products of the breakdown of PCE. Based upon this inspection and the investigation of other potential sources, DER took the position that the surge tank at Crown had discharged waste water containing PCE into the adjacent soils and that PCE migrated into ground water produced by the ECUA's public water supply wells, PW-6, PW-8, PW-9, and "east well". Although not stipulating that the samples were representative or to the conclusions to be drawn from the analytical results of testing the samples, the parties stipulated that proper physical and technical procedures and methods were used in the collection, preservation and analysis of all of the samples and the laboratory results were consequently stipulated into evidence. Jura, American Linen, Crown, and the Belleaus had no actual knowledge that any PCE had been deposited in the surge tank between 1971 and the date in 1979, when American Linen bought the facility. A commercial laundry has been operated on the subject property since 1971. The laundry was operated by RCD at that time, and in the summer of 1974 and during at least part of 1975, a dry-cleaning operation, in addition to laundry, was conducted by RCD at the site. The dry-cleaning operation involved the use of PCE. This was the only period of time when dry-cleaning operations were conducted on the property until 1985 when Crown conducted a dry-cleaning operation. Crown's operation, however, made no use of PCE, but rather, Crown used "stoddered solvent" as its dry- cleaning fluid. During American Linen's ownership and operation of the laundry at the site, no dry-cleaning operations, whatever, were conducted. At no time during American Linen's ownership and operation of the laundry at the site nor during the Belleaus ownership, and Crown's operation, of the laundry facility was any PCE used or stored on the property. Since laundry operations commenced at the site, the waste wash water from the laundry was discharged to the surge tank located beneath the floor of the Crown building. That tank intercepts and stabilizes wash water prior to its discharge to the municipal sanitary sewer system. The surge tank also served as a component of the laundry operation as a thermal recovery system. Although the surge tank and the commercial laundry and dry-cleaning businesses which have been operated at the site constitutes an "installation" for purposes of Section 403.031(4), Florida Statutes, the tank has never been used for the intentional storage or disposal of any "hazardous substances", as defined in Section 403.703(31), Florida Statutes, by any of the Respondents. The tank has never been used for the intentional disposal of any hazardous substances by American Linen, Crown, the Belleaus, or Jura. During normal laundry operations, lint, sand and other sediment accumulated in the bottom of the surge tank over a period of time. When the accumulated quantity of sediment became too great so as to interfere with the operation, the liquid and the sediments were removed periodically by a vacuum truck and manual labor, using shovels, buckets, and a dumptruck. The surge tank was cleaned out several times over the pertinent years, including 1976, 1978, or 1979 (before American Linen's purchase), as well as in 1980-81, 1983, 1987, 1990 and 1991. It was possibly cleaned in 1972 or 1973, as well. In the 1976 clean-out, the surge tank was cleaned thoroughly enough that the workers reported searching for loose change on the concrete floor of the tank. DER must prove a violation of Section 403.161(1)(a) or (b), Florida Statutes, in order to establish liability for purposes of Section 403.141(1), Florida Statutes, and Section 403.121(2), Florida Statutes. DER has also sought, as of the time of hearing, to impose liability on the Respondents, pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the owner and operator or former owner and operator of a facility at which a release to the environment of a hazardous substance has occurred. Section 403.161(1)(a), Florida Statutes, provides that it is prohibited for a person to cause pollution so as to harm or injure human health or welfare, animal, plant, or aquatic life, or property. In this proceeding, DER did not establish with competent, substantial evidence that the alleged pollution by PCE caused any harm or injury to human health or welfare, animal, plant, or aquatic life, or property. No risk assessment was conducted to determine the potential harm or actual harm. No testimony was presented with regard to the possible health effects or injurious impacts of PCE in the environment. There was no evidence shown to establish what amount of PCE in the environment or ground water might cause or potentially cause such harm to human health or any of the other injurious effects referenced in the above-cited Statute. DER has not adduced any evidence of a preponderant nature to show that any Respondent is thus liable for a violation of Section 403.161(1)(a), Florida Statutes. Section 403.161(1)(b), Florida Statutes, provides that it is a violation to fail to comply with any rule of DER. Section 403.161(1)(b), Florida Statutes, is implemented with regard to ground water through former Rule 17-4.245(2), Florida Administrative Code, now Rule 17- 28.700, Florida Administrative Code, which provides a cause of action for violation of ground water standards. In order to maintain a cause of action under that Rule, DER must prove that the Respondents violated either Rule 17-3.402(1), Florida Administrative Code (the "Free From" Rule), or Rule 17-3.404(1)(a), Florida Administrative Code, which sets forth the ground water criteria alleged in the NOV and Amended NOV to have been violated. Concerning Rule 17-3.402(1), Florida Administrative Code, which establishes narrative, minimum health effects-based criteria applicable to ground water, DER has alleged that the Respondents failed to comply with this Rule, but introduced no evidence concerning any health effects of PCE in the ground water. DER produced no evidence whatever regarding the concentration, if any, of PCE, which may be carcinogenic, mutagenic, teratogenic, or toxic, or which would pose a serious danger to the public health, safety or welfare, or create a nuisance, or impair the reasonable and beneficial use of any adjacent ground water. Even assuming that some amount of PCE was released from the surge tank at some period of time, DER failed to present any evidence regarding the quantity of PCE which may have been released, and the concentration in the ground water which could have resulted from a release from the Crown property. It simply was not proven that the concentration shown in the wells, at which samples were taken, all resulted from any release, if any, which came from the Crown property. Thus, DER failed to adduce evidence which can demonstrate in a preponderant way a violation of the "Free From Rule" cited above or which would support its cause of action under Section 403.161(1)(b), Florida Statutes, with regard to alleged violation of this Rule. DER has also alleged that the Respondents violated Rule 17-3.404(1)(a), Florida Administrative Code, cross- referencing and incorporating former Rule 17-22.104(1)(g), Florida Administrative Code, now Rule 17-550.310(2)(d), Florida Administrative Code, which sets forth the ground water standard, in the form of maximum contaminant level (MCL) for PCE. In order to demonstrate a violation of Rule 17-3.404(1)(a), Florida Administrative Code, as to each Respondent, DER had to prove that the Respondents caused a release of PCE to the ground water, resulting in a concentration of PCE in the ground water greater than the MCL established by the Rule. Effective May 23, 1984, DER thus established 3 parts per billion as the MCL for PCE in drinking water and as the water quality standard for PCE applicable in Class G- II ground water, which is the classification of the ground water underlying the Crown property, and occurring at all of the supply wells and monitor wells involved in this proceeding. In order to demonstrate a violation of the MCL by release of PCE from the laundry property, DER had the burden of proving: (a) that PCE entered the surge tank; (b) that the surge tank, in fact, released it to the environment and to the ground water; (c) that the release of PCE occurred during the ownership and/or operation of the laundry by one or more of the Respondents; and (d) that the amount of PCE entering the ground water during ownership and/or operation of each Respondent caused the concentration of PCE in the ground water to exceed the MCL in effect at the time of each Respondent's ownership and/or operation. Proof of PCE in the Tank Rentex installed a dry-cleaning machine at the Crown facility during mid-1974. It was equipped with two PCE holding tanks with PCE being used as the cleaning solvent in the dry-cleaning process. There was a storage tank, four to five feet tall, which stored pure PCE. The other tank was an eight to ten foot tall "cooker" tank used to heat and reconstitute PCE used in the dry-cleaning process. The machine was located near the rear of the Crown building, close to the floor drains and the wash room. The dry-cleaning machine was dismantled and removed from the Crown facility to another dry-cleaning establishment in Baltimore sometime in late 1974 or the early part of 1975. The thrust of DER's case is that spills of PCE occurred from the dry-cleaning machine and its operation at the Crown facility which were allowed to enter the surge tank and thence leaked into the soil, the environment and the ground water. Indeed, several boil-overs of PCE occurred during the period of 1974 and early 1975, when the dry-cleaning operations were being conducted at the facility. Witnesses, Mathias and Hedrick, for DER, established that one spill of PCE in the amount of four to five gallons also occurred, along with several boil-overs from the laundry machine during that time period; however, the actual amount of PCE spilled or boiled over from the dry-cleaning machine and its operation was not established by DER. Mr. Mathias worked as a maintenance man at the facility during the relevant period when dry-cleaning operations were conducted by RCD. He established that there were several boil-overs of PCE from the cooker tank and that when PCE boiled over from the top of the machine, some quantity would be sprayed onto the floor which was then hosed off into the floor drains, which communicate with the surge tank. He was unable to quantify the amount of PCE spilled on the laundry floor or which reached the surge tank, however. He was not able to definitively establish how many boil-overs he witnessed nor their severity in terms of the amount of PCE which was resultingly spilled on the floor of the laundry. He did not witness any spills of PCE other than those occurring in conjunction with boil-over events. Mr. Hedrick was also a maintenance man at the facility during RCD's period of ownership and its dry- cleaning operations. He knew of one incident in mid-1974 in which four to five gallons of PCE were spilled directly onto the floor of the laundry due to a hose connecting the holding tank to the cooker tank being inadvertently disconnected. That PCE was washed with a hose into the floor drains and thence into the surge tank. Mr. Hedrick could recall only two boil-overs of PCE from the dry- cleaning machines. These incidents involved PCE spraying over the top of the cooker tank but did not involve the release of any significant amount of PCE onto the floor. Mr. Hedrick established that employees were careful in handling the chemical because it was very expensive and they were careful not to waste it. After boil-over events which he described, he observed the level of the PCE in the holding tank, which did not appear to drop much as a result of the boil-overs. He was also responsible for refilling PCE into the holding tank as necessary. His experience was that he was not required to add PCE to the machine as the mere result of a boil-over because the boiling PCE escaped from the top of the machine mostly as foam with very little actual volume of PCE being discharged during such a boil- over event. Mr. Hedrick's testimony is corroborated by that of Dr. Mercer, an expert in hydrogeology, dense, non-aqueous phase liquid behavior (DNAPL), and the fate and transport of chemicals in the subsurface environment, presented by Jura. Dr. Mercer established that in a boil-over event, the PCE escaping from the top of the machine is pure PCE, chemically, but it escapes in the form of a foam or mist very near the boiling point of approximately 250 Fahrenheit. Because it is very volatile, most of the PCE escaping from the machine in a boil-over event, due to its volatility enhanced by its high heat, dissipates into the atmosphere. Whatever PCE did not volatilize would spread in a thin film over the floor of the facility and, because it was still a warm fluid, would continue to volatilize into the atmosphere. The small amount which did not volatilize would be washed into the floor drains and correspondingly diluted prior to entry into the surge tank, where it would be further diluted by the large volume of warm water present in the tank which would enhance dissolution and dilution. Consequently, the boil-overs would have produced only dissolved PCE entering the tank in small quantities, most of which would be flushed from the tank into the city sanitary sewer system through the outfall line exiting from the wall of the surge tank. Thus, the testimony of these witnesses establishes that only one spill of four to five gallons of PCE occurred in 1974, most of which was washed into the floor drains and into the surge tank. It was not established that the boil- over events materially contributed to the volume of PCE entering the surge tank during the dry-cleaning operations conducted in 1974 and early 1975. No PCE was shown to have been deposited in the surge tank after dry-cleaning operations ceased in 1974 or at the latest in early 1975 during the RCD ownership and operation of the facility. It was not shown that PCE was released or discharged to the environment by any other means since that time at or on the property or facility. Release of PCE to the Environment DER has thus established that some four to five gallons of PCE from a spill entered the surge tank in 1974 and that some minor quantities from boil-overs entered the tank through wash down of the laundry floor. DER also has the burden to establish the next evidentiary link; that the PCE was released from the surge tank to the environment. The surge tank consists of a poured concrete floor with concrete-block walls with a plaster or cement covering on the outside of the tank. The concrete-block mortar joints and concrete with which the tank is constructed are porous materials, although the specific porosity has not been quantified. The extent of coverage, the integrity and continuity of the exterior cement or plaster layer over the outside of the tank, and for the life of the tank, is not established. The surge tank was constructed in 1969 in conjunction with the construction of the laundry building. It is 20 feet long by 10 feet deep by 9 feet wide. It is stipulated that the surge tank leaks wash water at some rate because of the porosity of the materials and because of cracks and fissures which have opened in its walls since its construction. Testing of the tank in 1971 revealed that it leaked, at that time, at the rate of 6.5 gallons per day. No evidence establishes what the leakage rate before 1991 might have been. There is no direct evidence of a release of PCE from the surge tank to the soil or ground water. Michael Clark testified in this regard, as a member of the Operations Response Team of DER. In his opinion, DNAPL or "separate phase" PCE (undissolved PCE) had escaped from the tank into the ground water; however, he testified that he performed no calculations to determine the quantity of PCE which would have had to enter the surge tank in order to create a release of separate phase PCE. Mr. Clark assumed in the gravamen of his testimony that the contents of a 55- gallon drum of PCE had been released to the surge tank in a spill, in performing his analysis of the potential for release of PCE from the surge tank. He admitted, however, that the release of 55 gallons of PCE had been only hypothetical and no evidence was presented in this case to establish that 55 gallons of PCE had been spilled or otherwise placed in the surge tank. Mr. Clark was neither offered nor qualified as an expert in hydrogeology or any other field of expertise which could establish that he had any expertise in the movement of chemicals in the environment or in ground water or soils, nor as to the chemical state of those chemicals while in the soils or ground water at any point in time. Mr. Clark's opinion that separate phase PCE was released to the soil and then the ground water from the surge tank and that it resulted in the contamination found in the public water supply wells at issue, as well as in the monitoring wells, is not supported by competent, substantial evidence. Inasmuch as Mr. Clark's opinion testimony did not demonstrate, by preponderant evidence, that separate phase PCE was released to the environment from the tank and there being no direct evidence of such a release, then inferential evidence must be used to establish whether such a release occurred. PCE was shown to be present in the tank in 1974 based upon the above-described events. The presence of PCE has been detected in the ground water immediately downgradient of the Crown property, as well as in the public drinking water supply wells and the monitoring wells, downgradient of the Crown facility. That evidence, together with the evidence concerning the porous nature of the materials of which the tank is constructed and the tank's condition, which has deteriorated over time, is sufficient to support an inference that some undetermined quantity of dissolved PCE escaped from the surge tank over some undetermined points or periods of time. DER, however, did not adduce evidence which could establish an inference that a release of dissolved PCE or separate phase PCE from the tank would be sufficient to cause the violations of the MCL for PCE found at the monitoring points in the vicinity of the Crown property nor is the evidence sufficient to establish when the releases, if any, which may have contributed to a violation of the MCL for PCE at the monitoring or sampling points may have occurred. The lack of sufficient evidence to support such an inference is pointed out by the testimony of witnesses Mathias and Hedrick, testifying for DER, concerning the quantity of PCE which entered the tank and by the testimony of Jura's expert witness, Dr. James Mercer, regarding the behavior of PCE upon entering the tank and upon a release to the environment. The finding that the evidence is insufficient to support an inference that the tank released sufficient PCE to cause a violation of the MCL for PCE is further supported by the evidence that DER did not exclude, through its PCE source investigation, other potential sources of PCE contamination in the ground water, other than Crown, particularly in view of the evidence concerning the cone of influence of the "east well" and the location of the contamination in the PW-9 well, located upgradient from the Crown facility. Dr. Mercer testified concerning the behavior of separate phase PCE with regard to the spill of four to five gallons of pure PCE from the holding tank, as found above. He established that because PCE is very volatile, much of the spill would have volatilized into the atmosphere, although at a slower rate than the boiling temperature of PCE released during boil-over events, as described herein. The spilled PCE, which did not volatilize, would have been washed down with a hose, diluting it and dissolving it in water prior to its entry into the floor drains and the surge tank. In the floor drains and in the tank, some of the PCE would have been entrained or bound up in the lint present in those locations; and some of the PCE would have made its way to the surge tank. Because of prior dilution and dissolution, a relatively small amount of pure PCE would have entered the surge tank. The presence of warm water in the tank would have promoted more dissolution and dilution of the chemical, such that most of the four to five gallons of pure PCE spilled would have become mostly dissolved PCE upon entry into the tank. Some of that would have then been washed out into a sanitary sewer system through the outfall line. Since separate phase PCE is denser than water, any of it in that form entering the tank would sink to the bottom of the waste water in the tank, coming to rest on the layer of sand, lint and other sediments on the bottom of the tank. Dr. Mercer established that any separate phase PCE from the referenced spill would thus form a layer on top of accumulated sediments at the bottom of the tank, approximately .14 inches thick, assuming that it was evenly distributed over the bottom of the tank. In order for separate phase PCE to penetrate the pore spaces in the sediments, it would have to displace the waste water or wash water already occupying those pore spaces. If the layer, established by Dr. Mercer, was as thin as .14 inches thick, such a thin layer would not penetrate the pore spaces of the sediments because they would be filled already with wash water. That thin layer of separate phase PCE would not exert sufficient hydraulic pressure to displace that water because of the capillary pressure barrier formed between the water in the pore spaces and the separate phase PCE layer on top of the sediments. The capillary pressure effect is the pressure difference between two liquids, which creates a capillary pressure barrier, inhibiting the penetration of separate phase PCE into the pore spaces of the sediments. Dr. Mercer testified that a thickness of 4.7 inches of separate phase PCE, resting on top of the sediments, would be necessary to overcome the capillary pressure barrier between the wash water and the pore spaces of the saturated sediments and the separate phase PCE layer lying on top of those sediments. Therefore, most of the separate phase PCE would remain as a layer on top of the sediments. Dr. Mercer opined that if separate phase PCE does not reach the sediments in the bottom of the tank in sufficient volume to maintain the movement of the chemical through that porous medium, the separate phase PCE, which does settle to the top of the sediments, will tend to dissolve over time, partially into the wash water above the layer of PCE at the bottom of the tank and partially into the water occupying the pore spaces within the layer of sediments in the bottom of the tank. Any separate phase PCE, which dissolves into the overlying wash water, will become extremely diluted. Eventually, most of that dissolved PCE would be discharged through the tank's outfall to the public sanitary sewer system. Any separate phase PCE, which is able to overcome the capillary pressure barrier and move into the pore spaces of the sediments, by displacing wash water within those spaces, would become trapped within those pore spaces, because of an effect known as "residual saturation". When a separate phase liquid moving through a porous medium is not of sufficient volume to maintain its movement, it tends to physically break apart into globules of separate phase liquid within those pore spaces. As more globules form within the spaces, the movement of the separate phase liquid decreases until at some point the flow stops. When the flow stops, the globules of separate phase liquid become trapped within the spaces. The point at which a sufficient percentage of pore spaces are filled with globules of separate phase liquid is called "residual saturation". Because of the effect of residual saturation on any separate phase PCE at the bottom of the tank, Dr. Mercer concluded that separate phase PCE within the pore spaces of the sediments would be unable to flow and would effectually be trapped in the sediments in the bottom of the tank until those sediments were removed, either through dissolution into the wash water in the tank as flushing occurs through use of the tank over time or when the sediments were removed during clean-outs of the tank. Therefore, little, if any, separate phase PCE could have been released from the tank to the environment. Dr. Mercer's testimony was unrefuted and thus demonstrates that most PCE entering the tank would dissolve into the wash water already present, flow through the outfall to the sewer system, or become dissolved in the free water and water occupying the pore spaces in the sediments at the bottom of the tank. The evidence supports the finding that little, if any, PCE would be released to the soil surrounding or underlying the tank as a result of the spill of four or five gallons of PCE from the dry-cleaning machine. No evidence was presented to establish the quantity of PCE which could have escaped from the tank as a result of the spill of four or five gallons of PCE into the tank nor was any evidence presented which would establish during what period of time the release to the environment may have occurred. Charles Ferst testified as an expert in environmental engineering concerning the amount of PCE which may be released from the tank over time. Mr. Ferst testified that the leakage rate of the surge tank likely increased over time until reaching the current rate established in the evidence of 6.5 gallons per day, as determined by the 1991 test. Although the surge tank leaked at earlier periods, Mr. Ferst could not determine when the tank started leaking and could not calculate the leakage rate at any period of time prior to 1991 nor could any other witness. Based upon standard construction practices and the materials used in the tank at the time of its construction in 1969, Mr. Ferst opined that the tank leaked more after 1980 than in earlier years. Using that assumption and the fact that the sediments in the bottom of the tank were cleaned out several times between 1974 and 1991, he calculated the maximum amount of PCE which could have escaped from the tank after 1980. Mr. Ferst's calculations, however, are based upon a number of unsupported assumptions. Although he establishes that the tank leaked more in later years than in earlier years, his calculations and assumptions do little to establish how much PCE may have been released during any particular period of time; and little weight can be given to his conclusions regarding the specific amounts of PCE allegedly released at particular periods of time. DER did not present any evidence concerning the amount of PCE which could have escaped from the tank, even assuming that the tank leaked since 1974, when it was shown that some PCE had been placed in the tank. DER failed to prove that any amount of PCE which may have leaked out of the tank was sufficient to cause a violation of the MCL for PCE, and it did not inferentially demonstrate that any PCE which may have leaked out of the tank caused a violation of the MCL, because it simply failed to show that the violation levels found in the various wells where samples were drawn, solely resulted from contamination emanating from the Crown tank. DER failed to adduce evidence sufficient to carry its burden of proving a violation of the ground water standard for PCE caused by a release of PCE from the Crown property. Source of Contamination DER must prove that a release of PCE from the tank caused or contributed to the PCE contamination found in the public water supply wells and the monitoring wells. Dr. Mercer testified that if it is assumed that the tank is a source of contamination and the PCE concentration data collected by DER is used, the travel time of PCE from the surge tank to one of the monitoring wells, MW-3, where the highest concentrations were found, would indicate a release occurring many years prior to 1969, the year in which the Crown building and surge tank were constructed. Dr. Mercer therefore concluded that the surge tank at the Crown facility was likely not the sole or even the primary source of PCE contamination found by DER. In attempting to determine the source of the PCE discovered in the subject water supply wells, DER conducted soil sampling in suspected areas of contamination. This soil sampling revealed only two significant areas of PCE contamination in soils, neither of which was near the Crown property. DER then also selected monitoring well locations based upon ease of accessibility in order to determine the source of the contamination quickly. The monitoring wells were placed in the deep, intermediate, and shallow zones of the aquifer system underlying downtown Pensacola. Near the Crown facility, however, the intermediate zone was not present; instead, there was a shallow zone separated from the deep zone by a confining unit of relatively-impervious material. DER demonstrated that the shallow, intermediate and deep aquifer systems within the downtown Pensacola area are contaminated with PCE and PCE-derived breakdown compounds at widely-varying concentrations. DER did not prove, however, that one or more discreet plumes of PCE contamination exist. Mr. Clark, testifying for DER, attempted to calculate the travel time of contaminants found in MW-3 based upon their being released to the ground water from the Crown facility. Although Mr. Clark indicated this to be, in his belief, between 1970 and 1980, he admitted that he only estimated the travel time of ground water, as opposed to PCE, from the Crown property. Moreover, he averaged high hydraulic conductivity values for monitoring wells quite distant from the Crown property, near PW-9, and ignored data from closer, more relevant wells. Dr. Mercer, however, testified that the method used by DER to calculate travel time, which relies on conductivity values too far away from the suspected source and wells of concern, and averages only those high-conductivity values, while ignoring more pertinent values, provides a less accurate result. Hydraulic conductivity values are used to calculate ground water velocities, which can then be used to calculate travel times over a certain distance. Dr. Mercer testified that using the hydraulic conductivity values obtained from monitoring wells in close proximity to an assumed source and which reveal the presence of PCE in significant concentrations, which DER did not do, produces a much slower ground water velocity than that calculated by DER because the hydraulic conductivity values used are much lower. Averaging the hydraulic conductivity values obtained from monitoring wells which indicated significant concentrations of PCE in close proximity to the Crown facility to calculate travel time for PCE produced an estimate of 37 years for PCE released from the surge tank to reach MW-3. Thus, the PCE would have had to have been released prior to 1969 when the surge tank and the laundry facility were built (or from a different location). Because of this, it was not definitively shown that the PCE found in MW-3 came from the surge tank at the Crown facility. Dr. Mercer's testimony, because of his higher level of training, expertise and experience in hydrogeology and the fate and transport of chemicals in ground water, is accepted over that of Mr. Clark. Mr. Ross Mitchell testified regarding DER's search, which he conducted for facilities within the downtown Pensacola area which used or could have been the sources of a release of PCE. That investigation apparently concentrated on dry-cleaning establishments because DER opined that PCE was commonly used in such operations. Mr. Mitchell described his source investigation as "quick and dirty". He indicated that he did not follow up with every lead that he developed and that he established a "ball park" area within which to conduct his investigation. In fact, his investigation concentrated on a specific geographic area, in which other DER personnel had told him high concentrations of PCE had been found in ground water. As part of his investigation, he relied upon verbal representations by owners and operators regarding whether their facilities had ever used PCE. He made no effort to confirm those representations, other than cross-checking, in some instances, whether a given facility had been identified by a PCE supplier as a facility to which it had supplied PCE. However, he did not obtain customer lists from suppliers of PCE and was only able to get fragmentary information from the suppliers. Mr. Mitchell made no effort to verify whether PCE had ever been used at many of the facilities he had identified. He simply looked for readily- available evidence. That investigation was completed before DER became aware that PCE had been used at the Crown facility. Once that knowledge was obtained, Mr. Mitchell assumed that it would be the source of the PCE contamination found. He did not follow up regarding any of the other facilities which were on his list of suspect locations. He acknowledged at hearing that several of the suspect facilities, other than Crown, had not actually been eliminated as potential sources and acknowledged that he had not considered possible sources, other than dry-cleaning establishments, such as refuse dumpsters at facilities which had been identified as using or having used PCE. He did no environmental sampling around dumpsters at such facilities to detect spillage and did not investigate any records of any of the facilities he had investigated to determine whether they had purchased or used PCE. Mr. Mitchell located four dry cleaners, all upgradient of the PCE contaminated drinking water wells operated by ECUA. Among the dry cleaners suspected as potential sources of the contamination, only the Crown facility was located hydraulically downgradient of PW-9. In order for the contamination to travel from the Crown surge tank to PW-9, the pumping regimen employed by ECUA's supply wells would have to reverse the direction of ground water flow or hydraulic gradient. Dr. Mercer's calculations demonstrated that the pumping regimen employed by ECUA could not have reversed the gradient so as to pull contaminants from the Crown facility upgradient to be captured by PW-9. Dr. Mercer and Mr. Clark both agreed that the "east well" pumps continuously throughout the year. PW- 9 does not pump continuously. When the "east well" is pumping, it will capture anything that would be in the subsurface in the vicinity of the Crown facility; and its capture zone would extend upgradient as far as PW-9. Mr. Clark admitted that he had no calculations to support his conclusion that ECUA's pumping of PW-9 could have reversed the gradient in the subsurface to draw contaminants from the Crown facility to PW-9. Accordingly, it is concluded that DER did not adduce sufficient evidence to prove that the Crown facility could be the source of contamination in PW-9. The source investigation conducted by DER was inadequate to definitively determine whether the Crown facility was the source of PCE contamination or not. DER did not collect adequate soil and ground water samples throughout the area of known contaminations so as to pinpoint a specific source or sources for the contamination. No soil samples were collected from the immediate area around potential sources identified in close proximity to PW-9, for instance, such as the other four dry-cleaning establishments. Instead, once DER found PCE in MW-3 in high concentrations, it apparently focused all of its efforts on the Crown facility, assuming it to be the source of contamination. There are other upgradient PCE users (TCE), identified in Exhibit 6 which have not been ruled out as sources by competent evidence and that exhibit also shows that there may be three older dry cleaning sites in the downtown area with underground solvent tanks, which the record does not prove to have been investigated and ruled out as sources. Since Crown was shown not to be the source of PCE contamination at PW-9, there could be sources of PCE contamination other than Crown which better account for conditions observed in the ground water in downtown Pensacola. DER simply failed in its investigation to adequately rule out other potential sources of contamination within the cone of influence of the public water supply wells, PW-6, PW-8, the "east well", and PW-9. It is as likely as not, for example, that PCE emanating from whatever source or sources contaminated PW-9 (potentially four different dry-cleaning establishments) was also drawn hydraulically downgradient and into the "east well" and other wells. The record reflects that the "east well", for instance, when it is pumping, has a capture zone which extends as far as and including PW-9. DER failed to adequately investigate that potential explanation, as well as other potential sources of the contamination, including the stormwater pond, and thereby failed to prove that contamination emanating from the Crown facility, more likely than not, caused the contamination observed in the ECUA wells, or at least all of it, to the extent of its violating the MCL for PCE in the sites sampled. DER also seeks to impose liability on the Respondents pursuant to Section 403.727(4), Florida Statutes, which imposes strict liability on the current or former owner or operator at the time of disposal of any hazardous substance, as to a facility at which a release of hazardous substances has occurred. PCE is a hazardous substance, as that term is used in Section 403.727, Florida Statutes. However, Section 403.727, Florida Statutes, did not become effective until 1980; and PCE was not listed as a hazardous substance until 1984. DER has failed to prove in what quantity or during what period of time PCE may have been released from the surge tank at the Crown facility. It has established that PCE was only placed in the surge tank during 1974 and 1975 and not since, well before the effective date of this statutory provision and the listing of PCE as a hazardous substance. It has produced evidence from which it is inferred that a certain amount of dissolved PCE in laundry waste water leaked from the tank. It has not been established when the leakage started nor in what quantities PCE dissolved into the wash or waste water may have leaked into the surrounding soil, nor what rate (continuously increasing, decreasing, or static) the leakage occurred. Thus, the most that may be inferred is that leakage of dissolved PCE in an unknown concentration occurred sometime after 1974, but it has not been proven that PCE, as a hazardous substance, has been released into the environment during a specific period of time when each of the Respondents owned and/or operated the Crown facility. Thus, DER has failed to adduce evidence sufficient to carry its burden of proving a release of a hazardous substance, subjecting any of the Respondents to liability under Section 403.727, Florida Statutes. In any event, the Respondents were not on notice of the need to defend against a charge under that statutory section since the NOV and the Amended NOV did not inform them that such would be the basis of any purported liability alleged by DER. DER contended, for the first time at hearing, that the Respondents are liable for violation of the hazardous waste disposal rules. DER alleged at hearing that PCE, as a waste, is a listed hazardous waste, either as a spent solvent or a discarded commercial chemical. No such allegations were included in the NOV or the Amended NOV. However, Dr. Mercer established that any PCE which may have been released into the environment from the surge tank was in dissolved form and not as separate phase PCE. Dissolved PCE has not been shown to be a hazardous waste. Therefore, there is no evidence of record to support a finding that improper disposal of hazardous waste occurred at any point or points in time relevant to his proceeding. Moreover, Mr. Clark testified that he conducted a hazardous waste inspection of the Crown facility in 1982. Mr. Clark determined at that time that there was no hazardous waste being generated in the building or being stored in the building. DER has failed to demonstrate that any hazardous waste was generated or stored on the Crown property or disposed of into the surge tank at anytime by any of the Respondents. Finally, no evidence has been presented in this case that any of the Respondents had actual or constructive knowledge of the presence of PCE in the surge tank or of whether or not any release to the surge tank had occurred between 1971 and 1979 or any knowledge of any use or discharge of PCE to the surge tank prior to the commencement of DER's investigation in this action. Only RCD may be presumed to have had knowledge of the spillage of PCE which was discharged to the surge tank in 1974 and 1975, which entity was Jura's predecessor, ultimately merged into the corporation now known as Jura Services, Inc. Additionally, DER seeks in this proceeding only to be reimbursed for the costs of the investigation and tracing of the source of contamination and not for any natural resources damages nor any adjudication of the extent of liability for such damages, except insofar as the Order for Corrective Action which DER seeks to have imposed in this case reserves DER the opportunity to seek a determination after completion of corrective action of the extent to which the Respondents may be liable for natural resources damage, if any.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that DER enter a Final Order dismissing the Amended NOV against all Respondents. DONE AND ENTERED this 5th day of November, 1992, in Tallahassee, Leon County, Florida. Hearings Hearings P. MICHAEL RUFF Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 5th day of November, 1992. 5985 APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-3077 & 88- Petitioner's Proposed Findings of Fact 1-16. Accepted. Rejected as contrary to the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not dispositive. Rejected as contrary to the preponderant weight of the Hearing testimony and evidence and subordinate to the Officer's findings of fact on this subject matter. Rejected for the same reason. Accepted but not in itself dispositive of the material findings issues and subordinate to the Hearing Officer's of fact on this subject matter. Rejected as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 23-27. Accepted but not in themselves materially dispositive. 28-30. Accepted but not in themselves materially dispositive. 31-34. Accepted. 35-40. Accepted but not in themselves materially dispositive. 41-50. Accepted but not in themselves materially dispositive. 51. Accepted but not in itself dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. 52-53. Accepted. Accepted as to the DER intent in placement of the wells. Accepted but not materially dispositive standing alone. Accepted. Accepted to the extent that Crown Laundry has been shown source by circumstantial evidence to be inferentially a of the contamination found in the various wells mentioned but not the sole source nor the source actually causing this made on violation of appropriate standards and otherwise proposed finding of fact is subordinate to those this subject matter by the Hearing Officer. Rejected as not entirely in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted as to the levels of chemical depicted in this the proposed finding of fact but not as to the material import of the proposed finding of fact concerning tank being the cause of the excession of the MCL standards. Accepted but not itself dispositive of material issues presented. 61-62. Accepted. Accepted except that the presence of these chemicals in excession of the MCL inside the tank does not constitute a violation of any pertinent legal authority. Accepted. Accepted to the extent that the walls of the tank are a continuing source of PCE. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted in terms of the amount spent but rejected otherwise as being, in effect, a conclusion of law. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as constituting a recitation of a portion of the fact pleadings at issue and not as a proposed finding of which is materially dispositive of any issue. Rejected as not constituting a material proposed finding of fact but rather a recitation or discussion of the remedies sought by the Petitioner. Rejected as immaterial in this proceeding. Accepted but not dispositive. Rejected as constituting a conclusion of law and not a proposed finding of fact. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Respondent, American Linen Supply Company's Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not as probative that leakage could have raised the level of PCE in the monitoring and production well samples above the maximum contaminant level. Accepted. Accepted but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive. 27-28. Accepted. Respondents, Belleaus and Crown Laundry and Dry Cleaners, Inc.'s Proposed Findings of Fact 1-21. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, as speculative. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted but not itself dispositive of material issues. Accepted. Respondent, Jura Services, Inc.'s Proposed Findings of Fact 1-63. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 66-68. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jack Chisolm, Esq. Richard Windsor, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 William D. Preston, Esq. Thomas M. DeRose, Esq. HOPPING, BOYD, ET AL. 123 S. Calhoun Street P.O. Box 6526 Tallahassee, Florida 32301 Thomas P. Healy, Jr., Esq. MAYER, BROWN & PLATT 190 South LaSalle Street Chicago, Illinois 60603 John W. Wilcox, Esq. Derek B. Spilman, Esq. RUDNICK & WOLFE 101 East Kennedy Blvd. Suite 2000 Tampa, Florida 33602 Jeffrey C. Bassett, Esq. BARRON, REDDING, ET AL. Box 2467 Panama City, Florida 32401
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
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 Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue Are Petitioner’s outside water supply connections in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, and, if so, should Petitioner be assessed an administrative fine for such violation?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is permitted by the Department in accordance with Chapter 513, Florida Statutes, to operate the Peace River Campground, (Campground) which is a Recreational Vehicle (RV) Park (182 spaces) and a Mobile Home (MH) Park (15 spaces), annual permit number 14-010-97. The Campground’s water is supplied by a community public water utility company. Each RV and MH space has an outside water tap as required by Chapter 10D-26, Florida Administrative Code. Many of the outside water taps do not have a backflow or back-siphonage prevention device installed on them. On February 6, 1997, the Department conducted a routine inspection of the campground and determined that the campground was in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the required backflow or back-siphonage prevention. The citation required Petitioner to install backflow or back-siphonage prevention by February 28, 1997, the next scheduled inspection date. On February 28, 1997, the Department conducted a follow-up inspection of the Campground’s water system and determined that the alleged violation had not been corrected. Petitioner disagreed with the Department’s determination that the Campground’s water system was not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water system designed or constructed to prevent backflow or back-siphonage. On February 28, 1997, the Department issued a citation of violation (citation) to Petitioner alleging a violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water supply connection designed or constructed to prevent backflow or back-siphonage. The Campground’s water connections at each RV and MH site have water taps which are above ground and have standard water shut-off valves. The Campground’s water system has good water pressure of approximate 70-100 pounds pressure per square inch (psi). The Campground’s outside water taps are neither constructed nor designed to prevent backflow or back-siphonage in the event the water pressure drops to a point which would allow backflow or back-siphonage, such as if the water main feeding the Campground’s water system broke. If the water pressure in the Campground’s water system should drop allowing backflow or back-siphonage, hazardous material could possible be injected in the water system. Although there has never been a recorded incident of backflow or back-siphonage into the Campground’s water system, without the some type of backflow or back-siphonage preventer being installed there remains a potential for this to happen. The Campground’s outside water connections would not prevent backflow or back-siphonage under certain conditions and are not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code. There are six basic types of devices that are recognized by the Environmental Protection Agency and the engineering profession which prevent backflow and back-siphonage. These devices are: (a) air gaps; (b) barometric loops; (c) vacuum breakers--both atmospheric and pressure type; (d) double check with intermediate atmospheric vent; (e) double check valve assembler; and (f) reduced pressure principle devices. The Department does not mandate which device the Petitioner must install, only that a proper device be installed which will prevent backflow or back-siphonage. A hose bib vacuum breaker such as Department’s Exhibit 3 provide the minimum protection against backflow or back-siphonage and is considered acceptable for compliance with Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order assessing an administrative fine in the amount of $150.00. DONE AND ENTERED this 27th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1997. COPIES FURNISHED: Susan Martin Scott, Esquire Department of Health Post Office Box 60085 Fort Myers, Florida 33906 George Lempenau, pro se Peace River Campground 2998 Northwest Highway 70 Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
