The Issue Did Respondents violate the provisions of Rules 62-550.518(3), 62-555.320(4)(8), 62-560.410(2)(c), 62555.350(2), and 62-555.345, Florida Administrative Code, as alleged in the Notice of Violation and Orders for Corrective Action, Case Nos. 96-653PW2442B and 96- 653PW2442C dated June 9, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, under the authority of an Interagency Agreement with the Department of Environmental Protection, was the agency of the State of Florida charged with the responsibility for inspecting and clearing Public Water Systems in Polk County Florida under Section 403.121, Florida Statutes. SDS Properties Investors Group, Inc. (SDS) is a Florida corporation authorized to do business as Budget Motel. SDS is owned by Shaikh. Sanitary surveys are conducted by the Department every three years and include the inspection of Public Water Systems (PWS) . On January 26, 1996, the Department conducted a routine sanitary survey of Budget Motel (Budget) located at 1418 Highway 17 South, Lake Wales, Florida, which should have included Budget's public water system, PWS 6532442. However, Polk County's inspector, Henry Tagioff, was shown a well, by a Budget employee, that was located on the adjacent property owned by Smokey's Mobile Home Park (Smokey's) and not a part of Budget's water system. Tagioff was not aware that the well he inspected was owned by Smokey's and not on Budget's property. During the inspection, Tagioff noted several violations and advised the Budget employee that Tagioff needed to discuss these violations with Shaikh. On January 29, 1996, Tagioff and Lee Forgey, another Polk County employee, met with Shaikh to discuss the violations noted by Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff, and Forgey discussed the violations previously found by Tagioff on January 26, 1996, concerning the well on Smokey's property. At no time during this meeting did Shaikh advise Tagioff or Forgey that neither he nor Budget own the well under discussion. The record is not clear, but sometime between January and May 1996, Budget's well had collapsed and was not useable. Subsequent to Budget's well collapsing, Shaikh contracted with George Dunham, after obtaining Smokey's permission, to connect Budget's water system (PWS6532442) to Smokey's well. At the time of connecting Budget's water system to Smokey's well, Dunham advised Shaikh that this was only a temporary solution and gave Shaikh a proposal for a new well since Budget's old well could not be repaired. On May 2, 1996, Tagioff made a reinspection of Budget's water system and found that Budget's well had collapsed and was inoperable, and that Budget had connected to Smokey's well to furnish water to the motel and its guests. Tagioff advised Shaikh that Budget would need a new well since its old well was inoperable and the connection to Smokey's well was only temporary. On May 21, 1996, Mark Fallah, a Polk County employee, conducted a site inspection and prepared a report for use in connection with Budget's application with Southwest Florida Water Management District (SWFWMD) for a new well permit. In connection with Fallah's site inspection and report, the Department advised Shaikh by letter dated May 21, 1996, of certain things concerning the new well that had to be completed prior to placing the well into public use. The letter provides in pertinent part as follows: Upon completion of the drilling and the verification of the grouting procedure by the Water Management District, the following items, as required by Chapters 62-555 and 62550 of the Florida Administrative Code, are to be completed prior to this water system being placed into public use. * * * 2. A continuous chlorination unit that is electrically interlocked with the well pump circuit. * * * A flow measuring device is required on all Non-Community Water Systems. A copy of the well completion report must be furnished to this office by the well driller within thirty (30) days after the well installation. Bacteriological clearance of the well must be performed by submitting twenty (20) consecutive water samples for analysis to an HRS certified laboratory. A maximum of two (2) samples per day taken at least six hours apart may be collected. Additional samples may be required until twenty (20) consecutive satisfactory samples are received. * * * After the well and plant construction is completed, contact our office for an inspection so that written clearance can be issued. It is prohibited for any Public water system to be placed into use without clearance being issued from this department. (Emphasis Furnished). SWFWMD approved Budget's new well application and issued Budget Permit No. 579811.01 for drilling a new well. However, upon completion of the new well, there were certain conditions that had to be met as indicated in the letter from the Department dated May 21, 1996. On May 31, 1996, and July 10, 1996, Fallah inspected Budget's new water system for compliance and, on both occasions, found that Budget had failed to install the chlorination unit, the flow meter, and had not submitted a well completion report or bacteriological samples. On July 15, 1996, the Department issued a Warning Notice to Shaikh advising him that the system could not be used until approved by the Department. For enforcement purposes, the file was transferred to Lewis Taylor, enforcement officer for drinking water systems for Polk County. On November 14, 1996, Taylor conducted an inspection of Budget's water system and reported that: (1) Budget's well had been placed into service without approval from the Department; (2) there was no chlorinator in operation; (3) there was no flow meter; (4) the Department had not received any bacteriological samples since November 1995; (5) there was no certified operator servicing the motel's water system; and (6) Budget had not provided public notice to its customers of its failure to monitor its drinking water. A second Warning Notice was issued by the Department and furnished to Shaikh on November 22, 19-96, which in substance advised Shaikh that Budget was in violation of Rules 62-550 and 62- 555, Florida Administrative Code, for its: (1) failure to obtain the Department's clearance before placing its new well in service; (2) failure to provide quarterly bacteriological samples; (3) failure to maintain proper chlorine residual in the water system; failure to provide a flow meter in the water system; (5) failure to provide public notification to its customers that its water system had failed to comply with Rule 62-550, Florida Administrative Code; and (6) failure to provide the Department with verification of Budget retaining a certified operator to oversee the operation and maintenance of its water system. On March 3, 1997, Tagioff and John GoPaul, US Environmental Agency, inspected Budget's water system and found that: (1) there was no chlorine residual in the system; (2) the chlorination unit located at the motel was not in use; (3) there was no flow meter within the system; (4) no quarterly bacteriological samples had been furnished to the Department; and the well had not been cleared for use by the Department. Based on the testimony of Lewis Taylor which I find credible, the Department has expended the following in the inspection of Budget's water system: (1) 20.25 hours of professional time at a rate of $30.00 per hour for a total of $607.50; (2) three hours of clerical time at a rate of $15.00 per hour for a total of $45.00; and (3) $27.00 in travel costs and postage. The total amount expended in the inspection of this water system by the Department was $679.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Respondents guilty of the violations as charged and requiring Respondents to comply with the Orders for Corrective Action as set out in the Notice of Violation and Orders of Corrective Action in Case Nos. 96-653PW2442B and 96-653PW2442C. It is further recommended that Respondents be required to pay the costs and expenses of investigating the violations and prosecuting this matter in the amount of $679.50. DONE AND ENTERED this 27th day of May, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Roland Reis, Esquire Department of Health Polk County Health Department 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-6740 Habib U. Shaikh 4014 Billingsgate Road Orlando, Florida 32839-7515 SDS Properties Investors Group, Inc. d/b/a Budget Motel 1418 Highway 17 South Lake Wales, Florida 33853
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues to be adjudicated in this proceeding concern whether Conrock Utility Company's application for a water certificate in Hernando County meets the requirements of Sections 367.041 and 367.051, Florida Statutes, and, therefore, whether it should be granted.
Findings Of Fact 1. Applications and notices of intent to apply for a water certificate for a particular service area are required to be noticed in a newspaper of general circulation in the service area involved. In this proceeding, an affidavit was introduced from the "Sun Coast News," to the effect that Conrock had caused to be published in that newspaper its notice of intent to apply for the water certificate. That newspaper is published on Wednesdays and Saturdays in New Port Richey, Pasco County, Florida. Conrock's proposed service area, or territory, is in that portion of Hernando County lying east of the City of Brooksville. This newspaper is a free publication and states on the front page that it is circulated in Pasco and Hernando Counties. There is some testimony to the effect that the newspaper is only circulated in that portion of Hernando County lying westward of Brooksville near the Pasco County border, which is an area removed from Conrock's proposed service territory. No evidence was presented to the effect that that newspaper actually circulates in Conrock's proposed service territory. 2. Rules 25-30.030(2)(f), 25-30.035(3)(f) and 25-30.035(3)(h), Florida Administrative Code, require that the utility provide evidence that it owns the land where the treatment facilities are to be located or provide a copy of an agreement providing authority for the continuous use of the land involved in the utility operations and that a system map of the proposed lines and facilities be filed with the Commission. It was not established that Conrock owns or has a written lease for the land where the water facilities are proposed to be located. No actual lease has been executed providing for long-term continuous use of the land. It is true, however, that a verbal agreement exists with the Williams family members and/or the Williams Family Trust, who own the land upon which the facilities would be located, authorizing the use of the land for the proposed operations and facilities. That unrebutted evidence does establish, therefore, that Conrock has authorization to use the land where the water facilities, including the wells, are, or will be located. Although there is no extant written agreement, as yet, providing for the continuous use of the land involved, Conrock did establish that such an agreement can be consummated in the near future based on the verbal agreement it already has. Conrock did place into evidence a territorial map of the proposed service area. It did not, however, provide a system map or otherwise provide concrete evidence of where distribution lines and other facilities would be located for its proposed system. It submitted instead a "planning study" directed to the question of whether a water utility is needed for the proposed territorial area. It submitted no design specifications for the proposed system into evidence however. Conrock has not filed any tariff rate schedules for any water service it might conduct, if granted a certificate. Concerning the question of the need for the proposed water service, it was established by Conrock that 900 acres of the proposed service territory are mainly owned by the Sumner A. Williams Family Trust (Family Trust). Additionally, some small tracts are owned by S. A. Williams Corporation, a related family corporation. The majority of the 900-acre tract is zoned agricultural and the S.A.W. Corporation operates a construction/demolition landfill on that property. There is no evidence that it contemplates a real estate development on that 900-acre tract or other tracts in the area which could be served by the proposed water utility. Neither is Conrock attempting entry into the utility business in order to supply water to a development of the above-named corporation or any related party, person or entity. The proposed service area is rural in nature. The majority of people living in the area live on tracts of land ranging from 1 to 200 acres in size. The people living in the proposed territory either have individual wells or currently receive water service from the City of Brooksville or from Hernando County. Both of those entities serve small subdivisions, or portions thereof, lying wholly or in part in the proposed service territory of Conrock. Conrock has not received any requests for water services from residents in the proposed service territory. There is some evidence that discussions to that effect may have occurred with an entity known as TBF Properties, lying generally to the north of the proposed service territory. TBF Properties apparently contemplates a real estate development on land it owns, which also encompasses part of the Williams family property; some of which lies within the proposed service territory. Plans for TBF's residential construction development are not established in the evidence in this case however. There is no evidence which shows when or on what schedule the construction of that development might occur, nor whether it would actually seek service from Conrock if that entity was granted a water certificate. TBF Properties is the only entity or person in Conrock's proposed service territory that has expressed any interest to the City of Brooksville concerning receiving water service from the city. There have been no requests to the county for water service in the proposed service territory, except by Budget Inn, a motel development. The proposed service area includes a number of small subdivisions. These subdivisions are Mundon Hill Farms, Eastside Estates, Cooper Terrace, Country Oak Estates, Chris Morris Trailer Park, Potterfield Sunny Acres, Gunderman Mobile Home Park, and Country Side Estates. Mundon Hill Farms is an undeveloped subdivision. Eastside Estates and Cooper Terrace have limited development and the Country Oak Estates consist of only three homes. The Chris Morris Trailer Park has a small number of mobile homes but is not of a high density. Potterfield Sunny Acres has six to eight homes. Gunderman Mobile Home Park is a minor development. The Country Side Estates development has its own independent water system. Some subdivisions in Conrock's proposed service area already receive water service from the city or the county. Conrock was incorporated in the past year and as yet has not had any active business operations. It currently has no employees. Mark Williams, the President of Conrock, manages the construction/demolition landfill operation owned by the S.A.W. Corporation. The landfill business is the most closely related business endeavor to a water utility business in the experience of Mr. Williams, Conrock's president. If Conrock were granted a water certificate, either Ms. Donna Martin or Mr. Charles DeLamater would be the operations manager. Neither of these persons possesses any license or training authorizing him or her to operate a water utility system. No evidence was presented as to Ms. Martin's qualifications to operate a water utility system. Mr. DeLamater manages a ranch at the present time and also works in a management capacity in the landfill operation for the Williams family. There is no evidence that he has received any training in the operation of a water utility. It is true, however, that the representatives of the engineering and consulting firm retained by Conrock, who testified in this case, do possess extensive water and sewer design and operation expertise. The evidence does not reflect that those entities or persons would be retained to help operate the utility, but Conrock established that it will promptly retain operating personnel of adequate training and experience to operate the water system should the certificate be granted. Conrock has not established what type of system it would install should the certificate be granted, but a number of alternatives were examined and treated in its feasibility study (in evidence). One alternative involves the use of well fields alone, without treatment, storage or transmission lines. In this connection, the feasibility study contains some indication that the water quality available in the existing wells is such that no water treatment is necessary. In any event, Conrock has not established of record in this case what type of facilities it proposes to install in order to operate its proposed water service. Further, that feasibility study, designed to show a need for the proposed water service, is based upon the actual population, density and occupancies in the homes and subdivisions of the proposed service territory, even though those current residents and occupants have independent water supplies at the present time, either through private wells or through service provided by the City of Brooksville or Hernando County. Thus, the feasibility study itself does not establish that the proposed service is actually needed. Concerning the issue of the proposed facility's financial ability to install and provide the service, it was shown that Conrock stock is jointly held between the Williams family and the S.A.W. Corporation. The Conrock Corporation itself has no assets. The president of Conrock owns 100 shares of the utility corporation, but has not yet committed any personal funds to the venture. No efforts, as yet, have been made to obtain bonds, loans or grants. In fact, the first phase of the proposed project, which is expected to cost approximately $400,000, can be provided in cash from funds presently held by the Williams Family Trust and the S.A.W. Corporation. The various system alternatives proposed in Conrock's feasibility study, in evidence, range in cost from $728,200 to $5,963,100. Conrock has no assets and therefore no financial statement as yet. The financial statements of Mr. and Mrs. Sumner A. Williams, the parents of Conrock's president, include approximately $3,069,907. This is the corpus of the family trust mentioned above, and with other assets, amount to a net worth for those individuals of approximately 5.8 million dollars. Mr. Williams, Conrock's president, has an income interest in the family trust. The financial statements of the S.A.W. Corporation indicate it has a net worth of $1,588,739. The Family Trust financial statement shows a net worth of $3,069,907 of which $1,444,165 consists of stock in the S.A.W. Corporation. The Family Trust owns 90.9 percent of the S.A.W. Corporation stock. It is thus a close-held corporation, not publicly traded and thus has no value independent of the corporation's actual assets. In spite of the fact that Conrock, itself, the corporate applicant herein, does not have assets or net worth directly establishing its own financial responsibility and feasibility, in terms of constructing and operating the proposed water service, the testimony of Mr. Williams, its president, was unrefuted and does establish that sufficient funds from family members and the trust are available to adequately accomplish the proposed project. Concerning the issue of competition with or duplication of other systems, it was established that the City of Brooksville currently provides water service to the Wesleyan Village, a subdivision within the Conrock proposed service territory. The City has a major transmission line running from its corporate limits out to the Wesleyan Village. The Wesleyan Village is receiving adequate water service at the present time, although there is some evidence that water pressure is not adequate for full fire flows. The City also has another water main running from US 41 down Crum Road, which is in the proposed service territory of Conrock. By agreement with Hernando County, a so-called "interlocal agreement," the City of Brooksville is authorized to provide water and sewer utility service in a 5-mile radius in Hernando County around the incorporated area of Brooksville. This 5-mile radius includes much of the proposed service territory of Conrock. The City of Brooksville comprehensive plan, approved by the Florida Department of Community Affairs, contains an established policy discouraging "urban sprawl" or "leap frogging"; the placing of developments including separate, privately owned water utilities in predominantly rural areas. It, instead, favors the installation of subdivision developments in areas which can be served by existing, more centralized, publicly owned water and sewer utilities such as the City of Brooksville or Hernando County. Thus, the installation of the separate, privately owned system in a rural area of the county would serve to encourage urbanization away from area contiguous to the municipality of Brooksville which is served, and legally authorized to be served, by the City of Brooksville. Such a project would be in derogation of the provisions of the approved comprehensive land use plan. Further, Conrock's proposed system would be in partial competition with and duplication of the city and county water systems in the proposed service territory. The county provides some water service through its water and sewer district system to some of the subdivisions and residents in the proposed service territory of Conrock and much of Conrock's territory, as mentioned above, lies within the 5-mile radius urban services area of Brooksville, authorized to be served by the city and county interlocal agreement. Such interlocal agreements, including this one, are contemplated and authorized by the comprehensive plan approved by the Department of Community Affairs and the city/county agreement involved in this proceeding was adopted in 1978 in accordance with certain federal grant mandates in Title 201 of the Federal Safe Water Drinking Act. In terms of present physical competition and duplication, Conrock's proposed system would likely involve the running of water lines parallel to and in duplication of the county's lines within the same subdivision.
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 the application of Conrock Utilities Corporation for a water certificate authorizing it to operate a water utility in Hernando County, Florida, as more particularly described herein, be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1990. P. MICHAEL RUFF 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 Hearing this 24th day of January 1990. APPENDIX Petitioners, City of Brooksville, Hernando County, and Hernando County Water and Sewer District's proposed findings of fact. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Respondent's proposed findings of fact. Accepted. Accepted. 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. Accepted. Accepted. 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. Intervenor's proposed findings of fact. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in itself materially dispositive. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, but not in itself materially dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself materially dispositive. Accepted, but not in itself materially dispositive. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted. Accepted. Copies furnished to: William B. Eppley, Esquire Post Office Box 1478 Brooksville, Florida 34605 Peyton B. Hyslop, Esquire 10 North Brooksville Avenue Brooksville, Florida 34601 James F. Pingel, Jr., Esquire South Ashley Drive Suite 1400, Ashley Tower Post Office 1050 Tampa, Florida 33601 David C. Schwartz, Esquire Florida Public Service Commission East Gaines Street Tallahassee, Florida 32399-0855 Steve Tribble, Director Records and Recording Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford Executive Director Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Susan Clark, General Counsel Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 =================================================================
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 At issue in this proceeding is whether certain development orders issued by Monroe County to Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants) for a project that would ultimately result in the construction of a flushing canal in the Ocean Reef Club development on north Key Largo are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statues. Respondent, Monroe County, is a local government within the Florida Keys area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Respondents, Homeowners, Ocean Reef Club and Key Largo Foundation (Applicants), are the owners of real property in the Ocean Reef and Harbour Course subdivisions, Key Largo, Monroe County, Florida; properties that are located within that part of Monroe County designated as an area of Critical State Concern. The Applicants have sought the development orders (permits) at issue in this proceeding incident to their 8-year quest to achieve regulatory approval to initiate a project that would restore the water quality of Dispatch Creek to Class III water standards. Background The site of the proposed project, the present terminus of Dispatch Creek, is located within the Ocean Reef Club development on north Key Largo. That development is bordered on the east by the Atlantic Ocean and John Pennekamp Coral Reef State Park, on the north by Biscayne National Park, and on the west by the Biscayne Bay/Card Sound Aquatic Preserve. Currently, the development at the Ocean Reef Club includes a number of canals and boat basins, an airstrip; three 18-hole golf courses, a 174-slip marina capable of docking vessels in excess of 100 feet, and extensive residential and-commercial uses. In the mid-1970's, Dispatch Creek was a natural, albeit shallow, waterbody that was able to maintain, through natural tidal actions, water quality standards. However, in 1977 Ocean Reef Club, under permits issued by the Department of Environmental Regulation (DER) in the mid-1970's excavated the creek to new depths to create a navigable channel and extended its length beyond its natural contours. When completed, the creek was converted from a natural waterbody, that could maintain water quality standards through natural tidal action, into a dead-end system, that could not maintain such standards through natural processes along the course of its extended terminus. 1/ Over time, the water quality of Dispatch Creek from its approximate midpoint to its dead-end terminus has steadily declined. The cause of this decline is reasonably attributable to the biochemical oxygen demand placed on the creek by the continuous input of detritus from mangroves, which boarder the creek on the east and to a lesser extent on the west, and the length of the channel, coupled with the dead-end basin surrounding an island, which has assured the continued decline of water quality due to poor water circulation. As a consequence, the creek, as a habitat, has been altered from an oxygen rich system supportive of aerobic life to an oxygen poor system supportive of anaerobic life. This has evidenced itself through algae blooms, the intermittent emission of hydrogen sulfide gas, and a change in water clarity to that of a "coffee au lait" color. Currently, a significant portion of Dispatch Creek is devoid of aerobic life, and unless its condition is reversed it could not support aerobic marine organisms in the future. /2 Today, conditions in portions of Dispatch Creek fail to meet DER standards. DER regulations establish the dissolved oxygen (DO) standard to be not less than five milligrams per liter in a 24-hour period, and never less that four milligrams per liter. The DO Standard is currently violated in Dispatch Creek beginning at the mid point of the creek to its terminus. At its terminus, DO levels are chronically below one milligram per liter. Additionally, DER nutrient standards prohibit the alteration of nutrient concentrations of a body of water so as to cause an imbalance in natural populations of aquatic flora or fauna. Here, the high nutrient levels of Dispatch Creek resulting from the mangrove detritus and lack of circulation has, as heretofore noted, caused the natural aquatic flora and fauna to be replaced by anaerobic life. As a consequence of the changes in water quality that had occurred in Dispatch Creeks the Applicants have, over the course of the past eight years, sought approval from various regulatory authorities, including DER and Monroe County, of a plan to improve the water quality in Dispatch Creek. Such approval has been garnered from DER, and Monroe County's approval is at issue in this proceeding. The DER permit On February 7, 1986, the Applicants received approval from DER for a permit to construct a flushing canal from the terminus of Dispatch Creek to the Atlantic Ocean. That permit authorized the Applicants: To construct a "flushing canal" between the dead end of Dispatch Creek Waterway and the Atlantic Ocean by: excavating approximately 13,000 cubic yards to create a canal approximately 3000 ft. long by 20 ft. wide with a bottom elevation of 6 ft. Mean Low Water; placing three 6 ft. by 6 ft. by 380 ft. box culverts in the canal alignment at the basin end; placing tidal actuated flap gates on the basin end of the culverts in a manner which will allow the basin to intake water from the flushing canal on incoming tides while preventing discharge into the flushing canal on outgoing tides; placing 5 pilings across the canal at it's juncture with the Atlantic Ocean to prevent navigation in the canal; and creating a 12,900 sq. ft. mangrove mitigation area by excavating approximately 1,450 cu. yds. from a spoil area to create an area with an elevation of +1.4 Ft. NGVD which will be planted with red mangroves. DER was, in evaluating the application pending before it, charged with the duty to apply, enter alia, the criteria of the 1984 Warren Henderson Wetlands Act, Section 403.918(2), Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code. Based on DER's decision to issue its permit, it is reasonable to conclude that DER, within its permitting jurisdiction, concluded that construction of the proposed circulation channel would not lower ambient water quality, and would not significantly degrade Outstanding Florida Waters (OFW), including those of John Pennekamp Coral Reef State Park. As heretofore noted, the Department does not contend that the subject project will violate any specific criteria within DER's Chapter 403, Florida Statutes, permitting jurisdiction. The Monroe County permits On July 19, 1989, Monroe County issued to the Applicants the building permit, excavation permit, and land clearing permit (development orders), each numbered 8930001680, at issue in these proceedings. As permitted, the project proposed by the Applicants is designed to improve the water quality of Dispatch Creek, particularly in the vicinity of its dead-end terminus, and consists of two phases. Phase I contemplates the installation and operation of an aeration system for at least one year, which will extend from the dead-end terminus of Dispatch Creek toward its midpoint, as well as a water quality monitoring program, until such time as the water quality of the entire creek comports with that of adjacent Class III waters. Should the Applicants be successful in Phase I, they would then be authorized to proceed with Phase II, which would allow the construction of the flushing canal contemplated by the DER permit. As approved by Monroe County, Phase I would consist of the installation of an aeration system around the island, located at the terminus of Dispatch Creek, and in the canal, as well as the suction dredging of loose sediments in the upper reaches of Dispatch Creek. The system would consist of fifteen microporus diffuser/aerators producing approximately 5 CFM per unit, and would be anchored near the bottom to maximize the introduction of dissolved oxygen into the anaerobic water and to optimize water movement. Operation of such system, coupled with the introduction of aerobic bacteria, will shortly reduce the concentration of hydrogen sulfide dissolved in the water, reduce the concentration of ionized sulfides in solution, retard the growth and propagation of anaerobics in the benthic layer, and activate the growth and propagation of aerobics in all strata. As a consequence, over time, water clarity will improve, which will allow the penetration of sunlight into the benthos. This illumination will spawn the growth of photosynthetic bacteria, as well as phytoplankton, which will aid in the continued aerobic cleansing of the water and bottom sediments. In all, installation and operation of the aeration system, which has proven successful at other locations, should, over time, restore the waters of Dispatch Creek to Class III standards, without any adverse impacts to adjacent waters or the park. While operation of the aeration system will, over time, restore the waters of Dispatch Creek to Class III standards, the perpetual maintenance of such system would be energy intensive and expensive. for this reason, the Applicants have proposed the Phase II canal, which would maintain, through natural tidal processes, water quality standards within the creek. The canal permitted by Monroe County under Phase II is consistent in all respects with the DER permit except the Monroe County permits require that the canal be sited 20 feet landward of the alignment permitted-by DER into previously scarified uplands. So aligned, the canal would begin at the landward terminus of Dispatch Creeks run easterly within the rear lot lines of at least 15 lots within Harbour Course South subdivision, a platted subdivision, pass through a fringe of red and black mangroves fronting the ocean, and terminate approximately 100 feet seaward of the mean high water line (MHWL) within the boundaries of John Pennekamp State Park. At the point where the canal would join with Dispatch Creek, three 6 foot by 6 foot by 380 foot box culverts would!! be installed with one-way tidal activated flap gates, which would permit waters from the Atlantic to enter Dispatch Creek on a rising tide, but would preclude an exchange of waters from Dispatch Creek on a falling tide. Through such design, sufficient mix and force will be exerted within the waters of Dispatch Creek to maintain Class III water quality standards by natural circulation, and to return the habitat offered by the creek to an oxygen rich system capable of supporting aerobic life. While construction of the canal would be beneficial, by restoring the waters: of Dispatch Creek to Class III standards, it is not without cost to the environment. As aligned, the canal, although predominately within previously cleared or scarified uplands, will require excavation through several types of habitat that are either undisturbed or reestablished, including undisturbed buttonwood association, salt marsh, hardwood hammock, transitional habitat, mangroves and submerged lands, and will require the removal of approximately one-tenth of an acre of red and black mangroves, a species of special concern, as well as a number of mahogany trees, twisted air plants, prickly pear cactus and barpar cactus, which are threatened species. Its construction would likewise sever the uplands from the adjacent transitional and wetland areas that traditionally buffer, insulate and protect nearshore waters from runoff from upland areas. Construction of the canal should not, however, adversely impact any threatened or endangered animal species since the proposed alignment is currently a poor habitat for threatened or endangered species, such as the Key Largo woodrat, that may reside in the area, and there is currently no threatened or endangered animal species inhabiting the site. This is not, however, to suggest that the site would not support such species in the future, provided that existing habitat is permitted to continue its progress towards reestablishment. To mitigate the loss of habitat types, the Monroe County permit provides: The agreed mitigation for the loss of all rare and/or endangered habitat types located within the area impacted by the dredging shall be carried out prior to initiation of the dredge project. This shall be based on existing vegetation surveys and an assessment of species currently located within the confines of the project area. Prior to initiation of any dredge activity, a formal inventory of the project site shall be made and a one-to-one replacement program (baked on species rarity or level of endangerment) shall be established and agreed upon. Such an agreement will include defining an appropriate site and the number and type of trees, as well as a maintenance plan for the agreed upon area. Additionally, the DER permit addresses the loss of mangroves, by requiring the establishment of a 12,900 square foot mangrove mitigation area. Under the facts of this case, the mitigation proposed would, assuming the propriety of such development under the Monroe County comprehensive plan and land development regulations, address the loss of habitat types occasioned by development of the proposed canal. To assure that water quality within Dispatch Creek comports with Class III standards before the canal is dug, and that the creek maintains such standards following construction, the Monroe County permits establish a water quality monitoring program. During the first year, samples will be taken and tests performed on a weekly basis for pH, DO, turbidity, Secchi Disc, temperature, and sulfite; on a biweekly basis for total bacterial count and composition; on a monthly basis for total nitrogen and phosphate; on a quarterly basis for: macro-invertebrates and macrophytes; and on a semiannual basis for heavy metals and pesticides. During the second yearn biweekly testing will be done for DO, temperature, hydrogen sulfide, turbidity and Secchi Disc; quarterly testing for total nitrogen and phosphate, macro- invertebrates, and macrophytes; and, annual testing for heavy metals and pesticides. After the second year, monthly tests will be done for DO, temperature, hydrogen sulfide, turbidity, and Secci Disc; quarterly tests for total nitrogen and phosphate, as well as macro- invertebrates; and annual tests for heavy metals and pesticides. Should the water quality of the creek fail to maintain Class III standards following construction of the canal, the Monroe County permit contains the following special condition: The water quality monitoring program shall be maintained to assess the quality of water in Dispatch Creek subsequent to the dredge project completion. If at any time the water quality fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in applicant's failure to do so, by the County. The applicant assumes all costs of closing said valve, whether closed by applicant or the County. Aeration, aid/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standard is met. The purpose of the foregoing condition, as well as the requirement that the waters of Dispatch Creek meet Class III standards before the canal can be dug, is to assure that operation of the canal will not lower ambient water quality within the Outstanding Florida Waters of John Pennekamp Coral Reef State Park, and thereby protect the park from any adverse impacts associated with the improved circulation of the creek. John Pennekamp Coral Reef State Park is a unique and world-renowned resource, attracting millions of visitors each year. At least fifty percent of the activities engaged in by visitors to the park are water-related, including fishing, observational diving and boating. Any degradation of the ambient quality of those waters would be contrary to DER's rules promulgated under Chapter 403, Florida Statutes, and could adversely impact the natural biota of the park, with a corresponding reduction in the number of visitors to the park and revenues contributed by those visitors to the local economy. Here, the proof demonstrates, consistent with DER's prior permitting, that the subject project, built as proposed, would not lower the ambient water quality of adjacent waters through the discharge of pollutants, and therefore would not adversely affect the park. If anything, the Monroe County permits, with one exception to be discussed infra, offer stronger assurances than the DER permit that adverse impacts will not occur. Notably, under such permits the Applicants must first bring the water quality of the Creek up to Class III standards before the canal can be dug. If the Applicants are ssuccessful at that phase of the project, there will not be excessive nutrient loading within the creek, and the detritus that may thereafter be removed from the creek by improved circulation would not adversely affect water quality or the park. Currently, there are no heavy metals in the sediments or water column of the creek which are at levels above those found naturally, and no pesticides or toxic organics. In sum, there is no basis to conclude, based on the record, that-there is any substance within the waters or sediments of Dispatch Creek that would, upon the waters achieving Class III standards, lower the amient quality of adjacent waters or adversely impact the park. /4 Ostensibly, as an added measure of protection to adjacent waters, the Monroe County permits contain a condition, with which the Applicants concur, that should the waters of Dispatch Creek fail to maintain Class III standards following construction of the canal, the one-way tidal actuated flap gates will be closed. That condition, a noted supra, provides: If at any time the water quality [of the creek] fails to meet the standards established by this permit, the one way flushing valve shall be closed by the applicant, and in the applicant's failure to do so, by the County. The applicant assumes all costs of closing by applicant or the County. Aeration, and/or other means at the discretion of the applicant, shall be utilized to reestablish quality. The valve shall not be reopened until the water quality standards is met. The foregoing condition presumes to address the possibility that should the proposed project fail to function as expected by the experts, as did the current Dispatch Creek fail to function as expected, that such failure will no result in an adverse impact to adjacent waters or the park. In this regard, it is worthy of note that DER's approval of the extension of Dispatch Creek to create a 7,200 foot dead-end canal in the mid-flush the pollutants from the canal into the park. The Applicants presented persuasive testimony, however, through their 1970's was, based on current knowledge, an error, and that today no dead-end system would be approved in excess of soon feet. Monroe County's condition, while preventing the discharge of degraded waters from Dispatch Creek to the park upon closure of the one way flushing valves, fails to address, however, the adverse impacts that could result from its closure. By closure of the valves, the flushing canal would be instantly converted into a 3,000-foot dead-end canal, and would suffer the same water quality problems as similar systems, with probable adverse effects to adjacent waters and the park. Accordingly, so as not to compound the existing error occasion by the extension of Dispatch Creek in the mid-1970's, prudence would dictate a proviso that, if the valves are shut, appropriate monitoring will occur within the waters of the flushing canal to detect any significant degradation of water quality, and that should such degradation pose a threat to adjacent waters or the park, that the Applicants be required, at their expense, to restore promptly the water quality within the flushing canal to Class III standards or restore the area to its present condition. Consistency of the proposed project with the Monroe County comprehensive plan and land development regulations Lack of plat approval As heretofore noted, the proposed canal would begin at the landward terminus of Dispatch Creek and run easterly within the rear lot lines of at least 15 lots in Harbour Course South subdivision, a platted subdivision, before it passed through fringing mangroves and terminated in the Atlantic Ocean. Currently, the final recorded plats of Harbour Course South subdivision do not reflect the proposed canal, as mandated by Section 177.091(15), Florida Statutes, and the Applicants have not sought to amend the plat to include the proposed canal. Pertinent to this case, the Monroe County Code (MCC), the land development regulations, /5 provides: Sec. 9.5-1. Purpose. It is the purpose of this chapter, the Land Development Regulations, to establish the standards, regulations, and procedures for review and approval of all proposed development of property in unincorporated Monroe County, and to provide a development review process what will be comprehensive, consistent and efficient in the implementation of the goals, policies and standards of the comprehensive plan . . . Sec. 9.5-2. Applicability. General Applicability: The provisions of this chapter shall apply to all land in unincorporated Monroe County. All development of whatever type and character, whether permitted as of right or as a conditional use, shall comply with the development standards and the environmental design criteria set forth in article VII hereof. No development shall be undertaken without prior approval and issuance of a development permit under the provisions of this chapter and other applicable laws and regulations. Sec. 9.5-81. Plat approval and recording required. * * * No building permit, 6/ except for single family detached dwellings and accessory uses thereto, shall be issued for the construction of any building, structure or improvement unless a final plat has been approved in accordance with the provisions of this division and recorded for the lot on which the construction is proposed. * * * (e) If a plat has been previously approved and recorded, technical or minor changes to the plat may be approved by the director of planning. All other changes shall be considered in accordance with the provisions of this Division. Sec. 9.5-94. Amendment of a recorded final plat. An amendment of a recorded final plat or portion thereof shall be accomplished in the same manner as for approval of the plat. Here, the subject permits were issued contrary to the foregoing provisions of the MCC because there was no final plat of record approving the canal as to each affected lot. While the Applicants offered proof, if credited, that the existing plat could be amended to include the canal as a "minor change" upon approval of the Director of Planning, it is noteworthy that no such approval has been obtained. More importantly, it is found that a change in the existing plat to include the canal would not constitute a "technical or minor change," and that formal amendment of the plat would be required. 7/ The provision of the MCC dealing with plat approval, provide a comprehensive scheme to assure, among other things, than the proposed plat is consistent with the purposes, goals and objectives of the comprehensive plan, the development regulations, and state laws, as well as affording an opportunity for public input. Of import here, the MCCs provide: Sec. 9.5-82. General Standards for Plat Approval. No preliminary or final plat shall be approved unless the plat is consistant with the purposes, goals and objectives of this plan, this chapter, applicable provisions of state law, the provisions governing the development of land set forth in article VII, and the procedures set forth in this article. Sec. 9.5-83. Preliminary Plat Approval. Generally. All applicants for approval of a plat involving five (5) or more lots shall submit a preliminary plat for approval in accordance with the provisions of this section. Application. An application for preliminary approval shall be submitted to the development review coordinator in accordance with the provisions of this section, accompanied by a nonrefundable fee as established from time to time by the board of county commissioners. The application shall contain the information required on a form provided by the director of planning. Staff Review. After a determination that the application for preliminary plat approval is complete under the provisions of section 9.5-44, the development review coordinator shall submit the application to the development review committee, which shall prepare a recommendation and report for the commission. Public Hearing and Action by the Planning Commission. The planning commission shall conduct a public hearing on an application for preliminary plat approval of a subdivision involving five (5) or more lots, in accordance with the requirements of sections 9.5-46 and 9.5-47. The commission shall review such applications, the recommendation of the development review committee, and the testimony at the public hearing, and shall recommend granting preliminary plat approval, granting approval subject to specified conditions, or denying the application at its next meeting following submittal of the report and recommendation of the development review committee. Effect of Approval of Preliminary Plat. Approval of a preliminary plat shall not constitute approval of a final plat or permission to proceed with development. Such approval shall constitute only authorization to proceed with the preparation of such documents as are required by the director of planning for a final plat. Sec. 9.5-84. Final Plat Approval. Generally. All applicants for approval of a plat shall submit a final plat for approval in accordance With the provisions of this section. Application. It shall be the responsibility of the developer to complete, have in final form, and submit to the development review coordinator for final processing the final plat, along with all final construction plans, required documents, exhibits, legal instruments to guarantee performance, certificates properly executed by all required agencies and parties as required in this article, and the recording fee, and any other documents or information as are required by the director of planning. After receipt of a complete application for final plat approval, as determined in accordance with section 9.5-44, development review coordinator shall submit the application and accompanying documents to the development review committee. Review and action by Development Review Committee. The development review committee shall review all applications for final plat approval. b. For a final plat for subdivision involving five (5) or more lots, if the plat conforms to the approved preliminary plate and the substantive and procedural requirements of this chapter, at its next regular meeting or as soon as practical after receipt of a complete application, the development reviews committee shall recommend to the planning commission approval of the final plat or approval with conditions. If the committee finds that the plant does not substantially conform to the approved preliminary plat or the substantive and procedural requirements of these regulations, the committee shall recommend denial, specifying the area(s) of nonconformity. Review and Action by the Planning Commission. The planning commission shall review all applications far final plat approval involving five (5) or more lots and the recommendation of the development review committee. If the commission finds that the final plat conforms to the approved preliminary plat and the substantive and procedural requirements of this chapter, the commission shall recommend to the board of county commissioners approval of the final plat, or approval with specified conditions, and shall submit a report and written findings in accordance with section 9.5-47. Public Hearing by the Board of Country Commissioners. The board off county commissioners shall conduct a public hearing on all applications for final plat approval involving five (5) or more lots in accordance with the procedures of section 9.5-46C. Action by the Board of County Commissioners. For proposed subdivisions involving five (5) or more lots the board of county commissioners shall review the application, the recommendations of the development review committee and the planning commission, and the testimony at the public hearing, and shall grant final plat approval, grant approval subject to specified conditions, or deny the application, in accordance with the provisions of section 9.5-47. Sec. 9.5-90.Maintenance of Private Improvements. If any plat of subdivision contains streets, easements, or other improvements to be retained for private use, the final plat for recordation shall indicate to the satisfaction of the director of planning and the county attorney the method or entity by which maintenance of the private improvements shall be performed. As a consequence of Monroe County's failure to comply with the provisions of its regulations which require final plat approval before a building permit may be issued, there has been no review by the Development Review Committee, no public hearing conducted by the Planning Commission, no recommendation of the Planning Commission, and no public hearing before the County Commissioners on the propriety of amending the subject plat to permit the proposed construction, or a resolution, through the plat approval process, as to whether the proposed canal is consistent with, inter alia, the purposes, goals, and objectives of the Monroe County comprehensive plan, as mandated by section 9.5-82(a), MCC. As importantly, where, as here, the proposed canal is to be retained for private use, there is no indication on the recorded plat, 4s required by MCC 9.5-90, of the method or entity by which maintenance of the canal shall be performed. Notably, the property through which the canal will be constructed is not owned by any of the Applicants but, rather, by Driscoll Properties , with whom the Applicants state they have an agreement to permit construction. 8/ Open space requirements and environmental design criteria Pertinent to this case, the MCC further provides: Sec. 9.5-3. Rules of construction. In the construction of the language of this chapter, the rules set out in this section shall be observed unless such construction would be inconsistent with the manifest intent of the board of commissioners as expressed in the Monroe County Comprehensive Plan or an element or portion thereof, adopted pursuant to chapters 163 and 380, Florida Statutes (1985). The rules of construction and definitions set out herein shall not be applied to any section of these regulations which shall contain any express provisions excluding such construction, or where the subject matter or context of such section is repugnant thereto. (a) Generally: All provisions, term , phrases and expressions contained in this chapter shall be liberally construed in order that the true intent and meaning of the board of county commissioners may be fully carried out. Terms used in this chapter, unless otherwise specially provided, shall have the meanings prescribed by the statutes of this state for the same terms. In the interpretation and application of any provision of this chapter, it shall be held to be the minimum requirement adopted for the promotion of the public health, safety, comfort, convenience and general welfare. Where any provision of this chapter imposes greater restrictions upon the subject matter than a general provision imposed by the Monroe County Code or another provision of this chapter, the provision imposing the greater restriction or regulation shall be deemed to be controlling . . (Emphasis added) Sec. 9-804 (MCLDR) Open space requirements. No land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the following ratios, nor shall open space be cleared or otherwise disturbed including ground cover, understory, mid-story, and canopy vegetation. All such required areas shall be maintained in their natural condition. The amount of open space required on any parcel for development shall be determined according to each land type and no development activity within any individual land type shall exceed the open space ratio for that land type. Land Type on Existing Open Space Conditions Map Ratio Open Waters 1.00 Mangrove and Freshwater 1.00 Wetlands Salt Marsh and Buttonwood .80 Associations .85 High Hammock (High Quality) .80 High Hammock (Moderate Quality) .60 High Hammock (Low Quality) . 4 Low Hammock (High Quality) .80 Low Hammock (Moderate Quality) .60 Low Hammock (Low Quality) . 4 Palm Hammock .90 Cactus Hammock .90 Pinelands (High Quality) .80 Pinelands (Low Quality) .60 Beach Berm .90 Disturbed . 2 Disturbed with Hammock . 2 Disturbed with Salt Marsh and Buttonwood . 2 Disturbed Beach/Berm . 2 Disturbed with Exotics . 2 Disturbed with Slash Pines . 2 Offshore Islands . 9 (Emphasis added) Sec. 9.5-345. Environmental design criteria. No land, as designated on the existing conditions map and analyzed in accordance with the standards in sections 9.5-339 and 9.5-340, shall be developed, used ~re occupied except in accordance with the following criteria unless the county biologist recommends an authorized deviation from the following criteria in order to better serve the purpose and objectives of the plan and the director of planning or planning commission approves the recommendation as a minor or major conditional use. No recommendation for an authorized deviation from these environmental design criteria shall be made unless the county biologist makes written findings of fact and conclusions of biological opinion which substantiate the need and/or benefits to be derived from the authorized deviation. (m) Mangroves and Submerged Lands: Except as provided in subsection (3), only piers, docks, utility pilings and walkways shall be permitted on submerged lands and mangroves; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawall shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities. (Emphasis added) From the foregoing regulations it is apparent that Monroe County has accorded mangroves the highest of protections. The regulations mandate a 100 percent open space ratio in such areas, and preclude any clearing or other disturbance of such areas. The only exception provided by the regulators, absent approval of an application for a minor or major conditional use, is for the construction of piers, docks, utility pilings and walkways, and then only when such structures are constructed on pilings or other supports to minimize their impact. Here, the proposed development, "permitted as of right" and not as a minor or major conditional use, fails to comply with the Monroe County land development regulations because it will result in the elimination of an existing mangrove community. In addition to the environmental design criteria established for mangroves by section 9.5-345, discussed supra, that section likewise establishes-specific performance standards for the development of any parcel (lot) depending on the habitat type, and where mixed habitat is encountered, requires that development occur on the least sensitive portions of the parcel. Here, while the Applicants did address the habitat types encountered along the canal alignment, the record fails to address the habitat types encountered on each of the platted lots through which the canal will run. Consequently, the Applicants failed to demonstrate that development of those lots, by construction of a canal within their rear boundary, would be consistent with the open space ratios mandated by section 9-804, MCLDR, or the environmental design criteria mandated by section 9.5-345, MCC. C. The Monroe County land development regulations further and implement the Monroe County comprehensive plan. The foregoing land development regulations were adopted by Monroe County, as well as approved by the Department and adopted by the Administrations Commission, to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. That plan evidences a strong commitment to the protection, maintenance, and improvement of the Florida Keys environment. In this regard, the comprehensive plan provides: Sec. 2-104. Nearshore Waters The Florida Keys are dependent nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then the quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant of the biological character of submerged lands. To limit the location of water- dependent facilities at locations that will not have a significant adverse impact on offshore resources of particular importance. For the purposes of this policy, offshore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of legs than four (4) feet, and all designated Aquatic Preserves under Ch. 258.39 et seq. the Florida Statutes. To limit the location of docking facilities to areas which have adequate circulation and tidal flushing. To protect wetland and transitional areas that serve to buffer, insulate and protect nearshore waters from run- off from upland areas. To prohibit the discharge of any pollutant directly or indirectly into nearshore waters. For the purposes of this policy, indirect discharge into nearshore waters shall include surface runoff, surface spreading or well injection of any effluent that does not meet state or federal standards for point and non-point discharges. To monitor nearshore water quality to ensure that growth and envelopment is not degrading nearshore water quality. To encourage the rehabilitation of canals and other water bodies where water quality has deteriorated. Sec. 2-105. Wetlands and Associated Systems Wetlands are an essential element of the Florida Keys and they play several vital roles. Wetlands serve as principal habitats for a wide variety of plants and animals, including juvenile forms of several commercially-exploited species of seafood. In addition, wetland plants play an important role in pollution control through nutrient uptake, and in primary production control through nutrient uptake, and in primary production for food webs. Wetland plants also serve as important natural buffers to the onslaught of storm-driven winds and water. OBJECTIVE To protect and maintain the functional integrity of wetlands and associated transitional areas within the Florida Keys. POLICIES To prohibit the destruction, disturbance or modification of any wetland or associated transition area, except where it can be demonstrated that the functional integrity of a wetland or associated transitional area will not be significantly adversely affected by such disturbance or modification. Marine Resources The great value attributed to Monroe County's marine resources is due to their crucial role in the local economy, and in providing a wide range of natural amenities and services. Health and integrity of the marine system is a fundamental prerequisite if these resources are to continue to provide social, economic, and environmental benefits that we have at times taken for granted. Mangroves, seagrasses, and coral reefs, all of which are susceptible to pollution and dredging, are extremely important in providing food and shelter for myriad forms of marine life, providing storm protection, and maintaining water quality. If uses and activities such as dredge and fill, destruction of natural vegetation, use of pesticides and fertilizers, improper sewage and solid waste disposal continue indiscriminately and uncontrolled; the ability of the marine system to function effectively will deteriorate, thereby resulting in the loss of many natural services and socioeconomic benefits to society. Therefore, it is imperative that such uses and activities be carefully regulated so as to insure conservation and protection of resources and long-term maintenance of their productivity. Marine Resources Management Policies Recognizing the crucial role that the marine environment plays in the economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine ecosystem. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. * * * Land and water activities which are incompatible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of activity and the extent of potential impact. * * * 3.2. Dredging and/or filling associated with maintenance or necessary water- dependent public projects shall be minimized and carefully managed to prevent unnecessary adverse environmental impact. The County will develop and enforce stringent development regulations to minimize water pollution from point and non-point sources in an effort to: improve and maintain quality of coastal waters. . Marine grass beds, mangrove communities, and associated shoreline vegetation will be preserved to the fullest extent possible. Removal of vegetation or modification of natural patters of tidal flow and nutrient input, cycling and export should be considered only in the case of overriding public interest. The County will encourage creation and restoration of marine grass beds, and mangrove communities in areas which could support such growth and could potentially enhance the environmental quality. As far as possible, natural patterns of gradual and dispersed runoff will be maintained. Land and water activity in the vicinity of stress areas (coral, grass bed, and inshore water quality) as identified and illustrated in the Florida Keys Coastal Zone Management Study and as may be discovered during any future study will be carefully controlled and regulated in an effort to arrest further deterioration. Research and study directed toward alleviating the stresses and restoring their condition to natural healthy state will be encouraged arid supported. Marine Resources Areas of Particular Concern Site-specific Designations Lignumvitae Key Aquatic Preserve. * * * Management Policies: B. Development activity on Upper and Lower Matecumbe Keys, including dredging and filling will be prohibited so as not to degrade the waters of the Preserve. * * * 3. John Pennekamp Coral Reef State Park and Key Largo Coral Reef Marine Sanctuary. Management Policies: * * * B. Development activity on Key Largo, including dredging and filling, urban runoff water, and the use of septic tanks will be controlled and regulated in order to minimize stresses which result in cater quality deterioration. Generic Designations All marine grass beds in waters off the Florida Keys. All patch reef coral and other reef formations found in the surrounding waters off the Keys. All shore-fringing mangrove and associated vegetation extending up to 50 feet laterally upland from the landward limit of the shoreline mangrove. Management Policies A. These biotic communities will be preserved to the fullest extent possible. Natural Vegetative Resources The diverse and often unique plant associations of the Florida Keys are a vital element of Monroe County's natural system and economic structure. The natural functions performed by these plant communities with1 regard to marine resources, unique and endangered wildlife, shoreline stabilization, filtering of urban runoff and scenic value make them vital elements in maintainance of the urban structure and attractions for the tourist base of Monroe County's economy. Natural Vegetation Management Policies In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations; to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Consistent with the Monroe County comprehensive plan, the Monroe County land development regulations further the standards, policies and objectives of the plan to protect, maintain and improve the Florida Keys environment. In this regard, the provisions of the regulations requiring final plat approval before a development order may issued provide assurance that the proposed activity will be -consistent with the comprehensive plan, the land development regulations, and applicable provisions of state law. Likewise, pertinent to this case, the provisions of section 9-864, MCLDR, regarding open space requirements, and section 9.5-345, regarding environmental design criteria, further the plan's policy to minimize the destruction of natural vegetation and modification of landscape, and to preserve to the maximum degree possible areas characterized primarily by wetland vegetation, such as mangroves and associated vegetation, and to permit such removal only in cases of overriding public interest. Here, while it cannot be concluded, as advocated by the Department, that the Monroe County comprehensive plan and land development regulations prohibit, under any circumstances, construction of the subject canal, it must be concluded, at this stage, that construction of the canal has not been demonstrated to be consistent with the plan and regulations. To be consistent, the Applicants would have to secure final plat approval for the canal, through the plat amendment process; a minor or major conditional use approval, as appropriate, as mandated by, inter alia, section 9 .5-345, MCC, for destruction of the mangrove community; and demonstrate that excavation of the canal on each of the platted lots would be consistent with the open space ratios of section 9- 804, MCLDR, and the environmental design criteria of section 9.5-34, MCC, or secure a conditional use as required by section 9.5-34-5, MCC. Amendment to the application post hearing In their proposed recommended order, submitted post hearing, the Applicants propose that the hearing officer recommend that, as a condition, the proposed canal terminate at the line of mean high water instead of extending approximately 100 feet into the boundaries of John Pennekamp State Park. The ostensible reason for the Applicants' request is their desire to eliminate the need for seeking approval from the Department of Natural Resources for intrusion into the boundaries of the park, and thereby shorten the time needed to secure all governmental approvals. While the Applicants did elicit testimony at hearing, albeit on rebuttal, that termination of the canal at the mean high water line would not significantly affect its performance as a flushing canal due to the extreme porosity of the caprock, the proof is not persuasive that the subject permits should be so limited or conditioned. Notably, the opinion that was offered in this regard was that of an expert hydrographic engineer who directed his remarks solely from a hydrographic viewpoint. The Applicants offered no testimony or other proof that would address the potential impacts, in any, that might occur to, inter alia, water quality or the biota, should the canal be terminated or closed in such a fashion. Under the circumstances, the Applicants failed to persuasively demonstrate that such amendment or condition is appropriate. This finding is not, however, preclusive of their applying for such modification to Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order sustaining Monroe County's issuance of the subject permits in so far as they relate to Phase I of the proposed project, and reversing Monroe County's decision to issue the subject permits in so far as they relate to Phase II of the proposed project. It is further recommended that such final order specify those items set forth in paragraph 4, Conclusions of Law, as the changes necessary that would make the Applicants' proposal eligible to receive the requested permits for Phase II of their proposal. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of October 1990. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October 1990.
The Issue The issue in this case is whether Niagara Bottling Company, LLC (Niagara), is entitled to Consumptive Use Permit (CUP) No. 114010 issued by the St. Johns River Water Management District (District), which authorizes Niagara to withdraw and use 484,000 gallons per day (gpd) of groundwater to produce bottled water at a facility in Lake County.
Findings Of Fact The Parties Groveland is a municipal corporation located in Lake County. Niagara is a water bottling company registered to do business in Florida. Niagara currently owns and operates six water bottling facilities in the United States, including a bottling facility in unincorporated Lake County, northwest of Groveland. Niagara currently operates one bottling line at its Groveland facility, which can be used to bottle either spring water or purified water. The District is a special taxing district created by the Florida Water Resources Act of 1972, with jurisdiction over a sixteen-county area that includes Groveland and the site of Niagara’s proposed water withdrawal. The District administers a permitting program for the consumptive use of water. The Proposed Permit The top geologic layer in the region is the surficial aquifer, which starts at the ground surface and extends down about 50 feet to the Intermediate Confining Unit. Below the Intermediate Confining Unit is the Upper Floridan Aquifer, which starts at a depth of about 150 feet and extends downward to about 550 feet below the ground surface. Below the Upper Floridan Aquifer is the Middle Semi-Confining Unit, which extends down another 450 feet. Below the Middle Semi-Confining Unit is the Lower Florida Aquifer, which extends down to about 2,200 feet below sea level. Nearly all of the groundwater withdrawn for consumptive uses in central Florida comes from the Upper Floridan Aquifer. Groveland’s public water supply wells, for example, withdraw water from the Upper Floridan Aquifer. The proposed CUP authorizes Niagara to withdraw 484,000 gpd from the Upper Floridan Aquifer to produce bottled water. The CUP authorizes the installation of three water supply wells for the facility: a 16-inch production well, a 16-inch backup well, and a 4-inch supply well for domestic uses at Niagara’s facility. Of the 484,000 gpd that Niagara would withdraw, approximately 454,000 gpd would be treated and bottled as “purified water” and approximately 30,000 gpd would be used for cooling some of the equipment used in the bottling process. Under federal regulations, bottled water sold as purified water must meet certain maximum contaminant levels, including a total dissolved solids (TDS) level of less than 10 parts per million. By regulation, purified water is distinct from tap water and from bottled spring water. Niagara would treat the groundwater by filtration and reverse osmosis (RO), primarily to remove TDS. At a customer’s request, minerals can be added to the water to enhance taste. Also before the water is bottled, it disinfected with ozone. The RO process at the Niagara facility is projected to turn 454,000 gpd of groundwater into about 363,000 gpd of purified drinking water for bottling and 91,000 gpd of RO concentrate/wastewater. Reject water from the cooling water system would add some additional wastewater. Niagara has arranged to send its RO concentrate to the Frozen Grove Wastewater Treatment Facility to be blended and used for irrigation at the Mission Inn Golf and Tennis Resort in Howey-in-the-Hills. The City of Minneola has also agreed to take Niagara’s RO concentrate. Niagara and the District requested that the proposed CUP be modified to add the City of Minneola wastewater treatment facility as an alternative recipient for Niagara’s RO concentrate. Niagara and the District propose the following change to Condition 10 of the Technical Staff Report: Withdrawals of groundwater from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010 for commercial/industrial type use shall not be initiated until Niagara Bottling LLC and the Frozen Grove WWTF or alternatively Niagara Bottling LLC and the City of Minneola WWTF have obtained all necessary permits to create and use the blend of process waste water (R/O concentrate) and reclaimed water for irrigation, as described in Attachment 4 of the application materials submitted to the District on May 9, 2008 for the Frozen Grove WWTF and the material submitted to the District on March 4, 2009 for the City of Minneola WWTF. The permittee shall provide documentation to the District that the necessary permits have been obtained within 30 days of initiating withdrawals of groundwater for commercial/industrial type use from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010). The proposed CUP includes a conservation plan with provisions for monitoring water use, repairing leaks, conducting quality assurance inspections, using totalizing flow meters, and minimizing spillage. Niagara’s proposed CUP contains conditions for environmental monitoring. Niagara would be required to collect water level and rainfall data, and basic vegetation and soils conditions at Lake Arthur. Lake Arthur was selected for monitoring because hydrologic modeling indicated that Niagara’s greatest potential impact to the water table was near Lake Arthur. The monitoring is intended to detect any unexpected adverse environmental impacts caused by Niagara’s proposed withdrawal so that they can be addressed. The proposed permit has an expiration date of December 31, 2013. Stipulations and Withdrawn Claims Before the final hearing, Groveland withdrew a number of allegations made in its Second Amended Petition for Hearing. Groveland stated that its intent was to withdraw the claims that its substantial interests were affected by Niagara’s proposed groundwater withdrawal. Groveland no longer contends that it would be specially injured by the proposed water use. In the parties’ Joint Pre-Hearing Stipulation, Groveland stipulated that Niagara’s proposed water use would not interfere with any legal uses of water. Groveland also stipulated that Niagara’s proposed use would not cause adverse or significant impacts to lake stages or vegetation, would not impact adjacent land uses, would not cause significant saline water intrusion, would not cause or contribute to flood damage, would not harm the quality of the water source, would not cause or contribute to a violation of state water quality standards, would not impact minimum flows and levels established by the District, would not cause the water table or aquifer potentiometric surface to be lowered so that lake stages or vegetation would be adversely and significantly affected, would not affect spring flows or water levels, and would not use water reserved by the District from consumptive use. The record evidence supports the stipulations identified above. Economic and Efficient Utilization The Upper Floridan Aquifer is capable of producing the requested amount of water. Florida Administrative Code Rule 40C-2.301(4)(a) and Section 10.3(a) of the Applicant’s Handbook require that a water use be in such quantity as is necessary for economic and efficient utilization. The District’s determination of economic necessity focuses on preventing “water banking,” which is securing rights to water in excess of an applicant’s actual needs, for possible future use. Niagara’s 484,000 gpd allocation is based on the peak maximum daily output of the processing equipment operating at 74 percent capacity, which is the average capacity that Niagara achieves at its bottling facilities. Groveland contends that the consumer demand for bottled water could be met by other water bottlers and, therefore, there is no need for Niagara’s proposed withdrawal. However, no statute or rule requires Niagara to demonstrate that this particular CUP is the only means to meet the consumer demand for bottled water. The District’s evaluation of need focuses on the applicant’s need for the requested volume of water. In determining whether a requested use of water is necessary, the District does not evaluate the appropriateness of the associated business or activity, but only whether the applicant can reasonably be expected to use the requested volume of water, and do so efficiently based on industry standards. The evidence presented regarding the bottled water market and Niagara’s position in the market was sufficient to demonstrate that the requested volume of water is necessary through the duration of the CUP. The 30,000 gpd that Niagara would use for its cooling system is a reasonable amount of the water for that purpose. The technology to be used at Niagara’s facility is state-of-the- art, using constant online monitoring to reduce reject water. The cooling equipment and its operation have been designed to minimize water use. RO is the industry treatment standard for production of purified bottled water. It is the most cost-efficient treatment method in terms of energy use and water consumption. The proposed RO equipment and its operational parameters are designed to optimize treatment efficiencies. The volume of RO concentrate that would be produced depends on the TDS levels in the groundwater. The estimate of 91,000 gpd of RO concentrate is conservatively high, based on the TDS levels in groundwater samples. The actual volume of RO concentrate produced by Niagara could be smaller. Groveland was critical of Niagara’s wastewater volume, contending that the conversion of 91,000 gpd of groundwater to wastewater is inefficient and contrary to the public interest. The fact that Niagara’s bottling process would produce 91,000 gpd of wastewater does not make it inefficient. Nearly every commercial and industrial water use has a wastewater component. In the context of water bottling processes and water treatment systems, Niagara’s operation is efficient. Groveland asserts that sending Niagara’s RO concentrate to the Mission Inn golf course or the City of Minneola for irrigation purposes is inefficient because a large portion of irrigation water is usually lost to evaporation and does not recharge the aquifer. This assertion fails to account for the fact that every gallon of RO concentrate used for irrigation reduces by one gallon the volume of groundwater that would otherwise be withdrawn for irrigation. Using Niagara’s wastewater for irrigation contributes to the efficiency of Niagara’s proposed use. There is typically a deficit of reclaimed water from public wastewater treatment systems in the summer when the demand for reclaimed water for irrigation and other purposes increases. Niagara’s supply of RO concentrate, however, would remain constant throughout the year. Mission Inn and Minneola would benefit if they were able to use Niagara’s RO concentrate. Niagara’s conservation plan for water use at its facility is equal to or better than the conservation plans incorporated into the CUPs that the District has issued to other beverage bottlers. Niagara’s proposed use was shown to be of such a quantity as is necessary for economic and efficient utilization. Sources of Lower Quality Water Florida Administrative Rule 40C-2.301(4)(f) states that reclaimed water must be used if it is “readily available.” Section 10.3(g) of the Applicant’s Handbook requires that the “lowest acceptable quality water source, including reclaimed water or surface water” must be used for a consumptive use, unless the applicant demonstrates that the use of a lower quality water source is not economically, environmentally, or technologically feasible. The requirement to use a lower water quality source, however, is not applicable when the water is for “direct human consumption” or human food preparation. § 10.3(g), Applicant’s Handbook. Groveland argues that the word “direct” should mean unaltered and, therefore, Niagara’s bottled water is not intended for direct human consumption because the water is treated before it is bottled. The District, however, does not interpret or apply the term “direct human consumption” to mean drinking water directly from the source without treatment. In the case of the water delivered to households and businesses by public water suppliers, which also must be treated before it is delivered, the District regulates the water as being for direct human consumption. The fact that Niagara would filter the groundwater, apply RO treatment, add acid to prevent mineral buildup in the RO equipment, and add minerals for taste if requested by customers, does not disqualify Niagara’s bottled water as being for direct human consumption. Because 454,000 gpd of Niagara’s proposed water withdrawal would be processed for direct human consumption, Niagara did not have to seek to use a source of lower water quality for that volume. The requirement to use available sources of lower quality water would apply to the 30,000 gpd that Niagara intends to use for cooling. There are technical and economic problems associated with using water of lower quality for the cooling process at the Niagara facility because higher TDS levels would damage the cooling equipment. Using water with higher TDS levels would also require greater volumes of water to achieve cooling. Niagara’s cooling system is designed to reject water when the dissolved solids reach a certain high level, and to replace the reject water with fresh water. Operating at higher dissolved solid levels would cause the system to reject water more frequently, so greater volumes of water would be needed for cooling and greater volumes of wastewater would be generated. Using surface water from the St. Johns River, which has TDS levels much higher than in the groundwater, would require twice as much water to operate Niagara’s cooling system. In addition, a 44-mile pipeline would be needed to convey water from the St. Johns River to the Groveland facility, which would involve much higher costs. Seawater has even higher TDS levels and would require desalinization and a different cooling system. Using seawater would require much greater volumes of water for treatment and cooling. Disposal of the brine concentrate generated by the treatment process would create additional costs. The use of seawater would require the construction of a 120-mile pipeline, which would involve large capital and operating costs. Groveland insists that the much higher costs associated with these sources of lower quality water are still economically feasible for Niagara based on Niagara’s projected income from its bottling operations. The District does not determine feasibility based on the balance sheet of the individual permit applicant. The District evaluates relative costs of alternative sources in the context of normal practices and expected benefits. Reliable volumes of reclaimed water to use in Niagara’s cooling system are not readily available to Niagara from domestic wastewater treatment facilities in the area. The spring water sources that Niagara is currently using are not sources of lower quality water. These sources are of equivalent quality to the groundwater that Niagara proposes to withdraw. Groveland contends that Niagara did not investigate the quality of the Lower Floridan Aquifer as a potential source of lower water quality water for Niagara’s proposed use. Groveland believes, but did not prove, that the Lower Floridan has lower quality water. Studies conducted by the U.S. Geological Survey indicate that the water quality of the Lower Floridan Aquifer is about the same or better quality than the quality of the water in the Upper Floridan Aquifer. Water quality data from a Lower Floridan well in the vicinity also indicates that the quality of the water in the Lower Floridan is as good as, or better than, the water quality in the Upper Floridan in this area. Withdrawals from the Lower Floridan create a risk of saline water intrusion into the fresh portion of the Lower Floridan or Upper Floridan. Niagara demonstrated that it is not technically nor economically feasible to use a source of lower quality water for its cooling water. Individual Effect on Wetlands and Lakes To identify the “zone of influence” of Niagara’s proposed withdrawal of water and to assess the individual and cumulative effects of the drawdown associated with the withdrawal, Niagara’s consulting hydrogeologist used a steady- state numerical groundwater model developed by the District, known as the East Central Florida (ECF) groundwater model. It is a steady-state model, which produces a value that represents a long-term average effect. The ECF model predicts the level of drawdown in the surficial aquifer. The model assumes that wetlands and other surface waters are directly connected to the surficial aquifer so that a given drawdown of the surficial aquifer causes the same drawdown of the water levels in wetlands and other surface waters. The ECF model is calibrated to water level data from 1995. A drawdown predicted by the model is a drawdown from 1995 water levels. The ECF model results are graphically depicted as drawdown contours that are overlaid on aerial photography. The District considers the condition and functions of the surface waters in and around the withdrawal site to determine how they might be affected by a predicted drawdown. The dominant surface waters in the area of the proposed withdrawal are sand hill lakes. There are few wetlands. In sand hill lake systems, water table levels fluctuate widely, as much as eight or ten feet. Consequently, these systems are colonized by herbaceous plants that are adapted to widely fluctuating water levels. The wetlands and lakes in the area are not currently showing signs of environmental harm as a result of existing groundwater withdrawals. Niagara’s modeling predicted that the proposed water withdrawal, by itself, would cause a maximum drawdown in the surficial aquifer of 0.1 feet, except for one small area where the predicted drawdown was 0.2 feet. All the expert witnesses were in agreement that Niagara’s drawdown, by itself, is unlikely to cause environmental harm. In fact, the impacts of such a small drawdown on the physical conditions or functions of wetlands or lakes in the area would probably be impossible to detect. Cumulative Effect on Wetlands and Lakes For the analysis of cumulative impacts, the ECF model takes into account all permitted withdrawals for the year 2013, because that is the key year for the regulation of water uses in the Central Florida Coordination Area (CFCA), which includes the site of Niagara’s bottling facility. The CFCA is discussed in greater detail later in this Recommended Order. The ECF model predicated that the cumulative surficial aquifer drawdown within the area of influence of Niagara’s proposed withdrawal would be less than one foot except for one small area where the drawdown is predicted to be 1.1 feet. Niagara submitted an environmental assessment report, the Lotspeich report, with its permit application. The Lotspeich report concluded that no ecological harm would be caused by Niagara’s proposed withdrawal. Subsequently, Niagara’s consulting ecologist, Dr. Shirley Denton, who has extensive experience with the effects of drawdowns on wetlands and other surface waters, reevaluated the potential effects of Niagara’s proposed withdrawal. Dr. Denton visited all of the natural systems in the field. It was her opinion that the cumulative drawdown would not cause unacceptable harm to these natural systems. The District’s environmental expert agreed with Dr. Denton. In the Central Florida sand hill lakes area, a drawdown of this magnitude is not an uncommon cumulative impact from groundwater withdrawals that the District has determined to be acceptable. Groveland presented the testimony of Dr. Jay Exum who opined that the cumulative drawdown in the area of Niagara’s proposed withdrawal would adversely impact wetlands. Dr. Exum’s opinion was based on his prediction that the cumulative drawdown would result in a substantial reduction in the size of the wetlands in the area. However, his opinion about the loss of wetland acreage is not persuasive because of the unconventional methodology2/ that he used and the unreasonable assumptions upon which his opinion was based. Dr. Exum reviewed land cover maps of Lake County, calculated the size and topography of eight wetlands in the area (only one was within Niagara’s zone of influence), came up with an estimated reduction in wetland acreage for these wetlands, and then extrapolated from that number a prediction of the total area of wetlands within Niagara’s area of influence that would be lost as a result of the cumulative drawdown. Dr. Exum did not account for the fact that the wetlands and lakes in the area already reflect most of the cumulative drawdown. The cumulative drawdown predicted by the modeling is not a drawdown below today’s average water levels; it is a drawdown below 1995 levels. In addition, Dr. Exum assumed that a drawdown in the surficial aquifer of .5 foot will cause the future loss of the vegetation at the outer edges of a wetland in an amount that can be calculated simply by determining how much area .5 feet of water would occupy. That assumption would only apply in a hypothetical, unnatural situation where water levels are constant and the wetland vegetation will not survive if the water table drops .5 feet. However, the actual situation is that the water table fluctuates widely in these natural systems and the vegetation is adapted to the fluctuations. The area “formerly” occupied by the .5 feet of water could still be inundated frequently enough to sustain the vegetation. Dr. Exum’s opinion about the environmental effects that would be caused by the cumulative drawdown of the surficial aquifer was given less weight than the opinions offered by Niagara’s and the District’s ecologists because Dr. Exum has little or no prior experience with the effects of drawdowns on natural systems. Dr. Exum’s professional experience is almost entirely with the impacts associated with construction activities in or near wetlands, which would not acquaint him with the unique, long-term responses of natural systems to water table drawdowns caused by groundwater withdrawals. Dr. Denton, who has over 25 years of experience with monitoring wetlands affected by groundwater withdrawals, stated that drawdowns in the surficial aquifer do not usually cause reductions in the size of a wetlands. The more persuasive evidence in the record demonstrates that Niagara’s proposed withdrawal would not cause adverse impacts to wetlands on an individual or a cumulative basis. Niagara provided reasonable assurance that any environmental harm caused by the proposed use has been reduced to an acceptable amount. The five-year duration of the permit is reasonable and appropriate. Public Interest Section 9.3 of the Applicant’s Handbook defines “public interest” as: those rights and claims on behalf of the people in general. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State. The policy and practice of the District has been to limit its public interest analysis to matters directly related to water resources and the management of those resources. Other matters, such as vehicle traffic generated by the applicant, are not considered by the District. Groveland suggests that Niagara’s proposed use, and perhaps all commercial/industrials uses, are less important and worthy than public water supply uses like its own, and should not be allowed to take water that a public water supplier might need in the future. As discussed in the Conclusions of Law, all reasonable beneficial uses of water are equal under Chapter 373, except in certain contexts which are not applicable here. Commercial and industrial activities that make consumptive uses of water, when conducted in conformance with regulations established to efficiently use and protect the water resources, are generally beneficial to the collective well-being of the people. Groveland also claims that Niagara’s CUP is not in the public interest because a portion of Niagara’s bottled water will be shipped out of Florida. Although Niagara cannot project precisely the amount of bottled water that would end in the hands of consumers residing out-of-state, an estimate of 20 percent was given. For beverage bottlers or any other commercial or industrial water users that incorporate water into their products, the District deems the location of the water use to be where the water is bottled or incorporated into the products. The District does not look to where products are ultimately purchased by a retail consumer. Therefore, the District did not consider the fact that a portion of Niagara’s bottled water would be consumed outside of Florida as a factor in the District’s determination of whether the proposed water use is in the public interest. Niagara’s withdrawal is within the Central Florida Coordination Area (CFCA), an area covering parts of the jurisdiction of three water management districts and which includes the City of Groveland and the site of Niagara’s proposed water withdrawal. The CFCA is a highly productive area for groundwater withdrawals, but the water management districts have determined that it does not have sufficient water to serve water needs above the levels that have been allocated through the year 2013. To protect the water resources of the CFCA, rules were adopted to require public water suppliers and other water users within the CFCA to use “supplemental water supplies” to meet their increases in demand after 2013. Supplemental water supplies are identified in the CFCA rules as reclaimed water, stormwater, surface water, and seawater desalinization. Niagara is not requesting additional water above its 2013 demand and, therefore, is not subject to the restrictions imposed by the various CFCA rules. Nevertheless, the District treated Niagara’s location within the CFCA as a matter affecting the public interest. The District determined that it was inconsistent with the public interest to allow Niagara to withdraw groundwater in the CFCA unless Niagara was required to participate in the development of supplemental water supplies. Therefore, Niagara is required by “Other Condition” 14 in the District’s Technical Staff Report, to identify potential partners for the development of supplemental water supply projects, determine the viability of developing the partnerships, evaluate potential supplemental water supply projects available, and submit a comprehensive written report evaluating whether identified projects are feasible future water supply sources for Niagara. The District imposed a permit expiration date of December 31, 2013, to enable the District and Niagara to reevaluate Niagara’s ability to use a lower quality water source after that date. Groveland does not believe the conditions imposed by the District go far enough and asserts that Niagara’s water withdrawal from the CFCA is still contrary to the public interest. Niagara’s proposed withdrawal is also within a Priority Water Resource Caution Area (PWRCA) designated by the District. The District designates priority water resource caution areas as part of its water supply 20-year planning process. In the PWRCA, the District has determined that there is inadequate groundwater in the Floridan Aquifer to meet all existing and future water needs, without having unacceptable impacts on the water resources. The District stated that the designation of a priority water resource caution area is strictly a planning tool and does not preclude the issuance of permits. CUPs are commonly issued for proposed withdrawals in priority water resource caution areas in the District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Consumptive Use Permit No. 114010 with the conditions specified in the Technical Staff Report and the additional condition proposed by the District and Niagara and set forth in paragraph 12, above. DONE AND ENTERED this 7th day of August, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 7th day of August, 2009.
The Issue The issue for consideration herein is whether Sarasota County Utilities should be issued a consumptive use permit to draw water from the 14 wells in issue here located in Sarasota County.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for themanagement of water resources within its area of geographical jurisdiction. Included therein was the responsibility for the permitting of consumptive water use. The Respondent, Sarasota County, is a political subdivision of the State of Florida and operates a public utilities division which is charged with meeting, among other things, the potable water needs of the residents of the County. Petitioners Wyatt S. Bishop and Joan Jones are both residents of Sarasota County and both draw their potable water from wells which utilize the aquifers pertinent to the wells for which the permit in issue here relate. Mr. Bishop lives approximately 7.5 miles north of the Carlton Reserve, the property on which the wells in issue are located, and Ms. Jones lives approximately 7 miles from the Reserve, but in a different direction. Sarasota County filed an application for a consumptive use permit with the District on January 28, 1987 requesting an average daily withdrawal of 10.71 million gallons per day, (mgd), and a peak monthly withdrawal of 15.55 mgd. This application, assigned number 208836.00, was, over the next three years, amended by the County four separate times. These amendments reflected revised water demand determinations and were submitted to provide additional information requested by the District. The District issued a preliminary staff report and proposed intent on March 26, 1991 reflecting an approved withdrawal in the amount of 7.28 mgd average daily withdrawal and 11.1 mgd peak monthly withdrawal. These figures were revised, however, byan amendment by the District on July 8, 1991, and as amended, authorize 7.303 mgd average daily withdrawal and 9.625 mgd peak monthly withdrawal. The County's application was reviewed by an experienced hydrologist in the District office with extensive permit review experience who utilized, in his evaluation of the permit, the pertinent District rules and policies. By way of background, to more easily understand the circumstances here, Sarasota entered into a contract with Manatee County in 1973 which called for the latter to provide up to 10 mgd of water for a period of 40 years, up to and including the year 2013. However, in 1979, Manatee County's utilities director advised Sarasota County that it, Sarasota County, could not continue to rely on Manatee County's water after the expiration of the current contract, and would, therefore, have to become self sufficient in water. Since the MacArthur tract, now known as the Carlton Reserve, had just recently been identified by, inter alia, the United States Geological Service as a potential long term water source for Sarasota County, after Manatee County advised Sarasota County of its future expectations, Sarasota County and the Manasota Basin Board hired a consulting firm to conduct hydrological testing on the Carlton Reserve. This study concluded that the Reserve had sufficient water resources to satisfy the needs of the unincorporated areas of Sarasota County for an extended time into the future. In 1985, because of its increased water needs and thetime necessary to complete required studies on the utilization of the Myakka River, a surface water resource, Sarasota County concluded that it was suffering a water supply shortage and entered into a supplemental contract with Manatee County to provide 2 million gallons of water per day over a 5 year period which would expire in 1990. Sarasota County had not, however, been idle with regard to the investigation of other water resources. Studies done included not only the Myakka River mentioned above but a reservoir owned by the City of Bradenton, and the Peace River. Nonetheless, it was determined that the Carlton Reserve was the best source available overall, and in 1987, the County filed the application in issue here. The permit was under consideration for approximately 3 1/2 years before the initial decision by the District to grant it. During that time the County experienced a significant deficiency in its water sources and found it necessary, on February 5, 1991, to enter into another contract with Manatee County to supply an addition 5 mgd. Terms of that contract clearly indicate the expectations of both parties that Sarasota County will take reasonable steps to develop its own water resources. It is not as though Sarasota County sat quietly in the interim, however, and allowed the situation to develop. A building moratorium to halt additional construction was proposed and as a result, economic forces in the County indicated a potential loss of jobs to County residents. None of this would be desirable from an economicstandpoint. In the course of the permit application process, 12 test wells were sunk to conduct aquifer pump tests; to assess water quality, amounts and availability, aquifer characteristics and drawdown; and to determine the impact of withdrawal on water quality. Eight of these 12 wells are located on the Carlton Reserve. The other 4 are located on property owned by the MacArthur Foundation which is contiguous to the Carlton Reserve property and from which Sarasota has a right by easement to draw water. The 2 wells yet to be constructed will be on Sarasota County property. Sarasota County currently receives 10 mgd of water under its contract with Manatee County; an additional 5 mgd under the February 5, 1991 contract; 2 mgd from the University wellfield, (with a peak withdrawal rate of 3 mgd); and .9 mgd from the Sorrento wellfield, (with a peak withdrawal rate of 1.1 mgd). This latter source is only producing currently .6 mgd of potable water due to constraints imposed by the water treatment requirements. Taken together, the current Sarasota County supply constitutes 18.6 mgd. The above does not take into account the County's agreement with the City of Sarasota calling for the purchase of up to 2 mgd. Since this source is not reliable, it is not included in the total, and the City is not considered an available water source. In addition, the District and Sarasota County stipulated on July 15, 1991 that within 30 days, the County would apply tophase out routine water production from the Sorrento wellfield, relying on it only in emergency situations with District consent. For this reason, it, too, is not considered an available water supply source. These currently existing sources, with modifications as described, will be the primary sources of potable water provided to 6 major service areas in Sarasota County when the County's water treatment plant and transmission system are complete in 1993. In attempting to define the County's future water requirements, two major criteria were considered. The first was the County's historical water demand, and the second, modifying it, relates to the demand arising as a result of new water users being added to the system as a result of the County's capital improvements and acquisition program. Water resources are not unlimited. Current resources come primarily from Manatee County and there are constraints on this supply as it is made available to Sarasota County. For example, the 10 mgd contract expires in 2013. The 5 mgd contract expires in 2001. Though the latter is subject to renewal, renewal is contingent upon the availability of water supply at that time, and that is not a sure thing. It can, therefore, readily be seen that 15 out of the 18.6 mgd routinely available now comes from Manatee County, and those sources are not perpetual. In addition, it is conceivable that Manatee County may pre-blend the water it delivers to Sarasota County with water of lesser quality, so that the delivered water may exceed the total dissolved solids standard of 500 ppm for potable water. If thewater from Manatee County were reduced to that quality, the University wellfield supply, which currently exceeds standards itself, and which relies on blending with better quality Manatee County water to be potable, would also be removed as a source of potable water to Sarasota County. In order to comply with the provisions of Section 373.171, Florida Statutes, which requires the District to regulate the use of water by apportionment, limitation, or rotating uses, to obtain the most beneficial use of water resources and to protect the public health, safety and welfare, the District analyzed the available water sources and determined that Sarasota County relies upon its 10 mgd supply from Manatee County and the 2 mgd supply from University wellfield to constitute 12 mgd usable water. The 5 mgd from Manatee County would be used only in an emergency situation, and the Sorrento wellfield would be abandoned. Future water demands must be predicted relying in great part upon an historic record of prior water use. Utilizing a statistical procedure called linear regression, a methodology accepted by the District, indicated a water demand figure for the period from 1992 to 1997 based upon six use points extending from 1985 to 1990. These use records reflected a low of 9.733 mgd and a high of 12.808 mgd, the former being in 1985 and the latter in 1990. In addition, the County estimated that its capital improvement program would add between 10 and 12 thousand customers who presently use private wells, whose water use would constitute approximately 2 mgd of additional demand. The County's program toacquire some 42 private franchises now serving customers would add an additional demand of 2 mgd. Taken together, these programs would add in approximately 1.8 mgd per year to the need assessment, and it would therefore appear that by 1997, the County's average daily demand, considering all new users, would be 17.84 mgd. The water to be drawn from the Carlton Reserve is not currently potable and will require some form of treatment to render it so. Sarasota County proposes to use the Electrodialysis Reversal process, (EDR), because, in the County's judgement, it is more efficient than others such as reverse osmosis and ion exchange. Whereas EDR is rated at up to 85% efficient, the others range between 50% to 75% efficient. In that regard, in order to determine the maximum amount of water to be drawn, providing a safety factor for a treatment plant operation that is not working up to peak capacity in computing the water needs, the EDR process was determined to be no more than 80% efficient. Factoring in that efficiency potential, when the 1997 average daily demand is subtracted from the County's projected water capacity, the withdrawal need in 1997 is determined to be 7.303 mgd. However, as a part of its permitting process, the County also calculated its peak month daily demand. This is a figure which represents the maximum amount permitted to be drawn on a daily basis during the peak demand period. This peak period was determined under Section b 3.2 of the District's Basis of Review by taking the 1989 daily flow and using a sliding 31 day calendar to determine the highest historical 31 day flow. Thisresulted in a peak month coefficient of 6.16 which was then multiplied by the 1997 average daily demand of 17.842 mgd which resulted in a peak month daily demand of 20.7 mgd. When existing water supplies are removed and the 80% EDR treatment process factor is applied, the amount of raw water needed from the wellfield in issue on a peak monthly basis would be 9.625 mgd. This peak monthly basis figure is considered because of the intermittent periods of low rainfall and high water demand within the County. Accepting the 1.8 gpd yearly increase; the peak factor of 1.16; and the assumed water supply capacity of 18.6 mgd; Sarasota County's need will exceed its available supplies by 1993. In fact, the County is already experiencing low water pressure in part of its service area during peak demand periods. County experts estimate that without the requested water from the Carlton Tract, Sarasota County can expect to experience dry periods as early as 1993 during the periods of peak water usage, generally between April and June. For the above reason, when the application and its supporting information was reviewed by Mr. Basso, the District hydrologist with extensive experience reviewing more than 300 water use application, he determined that the water supplies requested are necessary to meet the County's certain reasonable demand, and that this meets the criteria set out in Rule 40D - 2.301(1)(a), F.A.C. Turning to the issue of hydrologic and environmental impacts, the District's Basis For Review of Water Permit Applications provides for the use of a "water use model" inevaluating water needs and the appropriateness of a proposed withdrawal. In preparing its submittal to the District, Sarasota County performed certain tests and modeling to derive the statistical and scientific information used in support of its application. Specifically it used the USGS' MODFLOW model utilizing information obtained from the pump tests run on the wells in the pertinent areas. Consistent with the District's rule, the water data and aquifer drawdown were determined by simulated pumping. The tests run also provided the information on water quality in the aquifer and physical characteristics including transmissivity, storage coefficient, specific yield and leakance between aquifers. This data also helped in defining the hydrogeologic framework of the Carlton Reserve. The Carlton Reserve's hydrogeology listed in descending order from the surface, includes a surficial aquifer which varies in depth between 19 and 70 feet across the Reserve; a semi-confining clay unit separating it from the intermediate aquifer; the upper intermediate and lower intermediate aquifer which range in depth from 140 to 180 feet across the Reserve; another confining layer, and the Upper and Lower Floridan aquifers. The hydrology and groundwater modeling expert who constructed the model used in Sarasota County's permit application concluded that the water table drawdown at the Reserve property boundary in the surficial aquifer would be less than .3 of a foot; less than .4 of a foot in the intermediate aquifer; and 2.9 feet in the Upper Florida aquifer. The water to be drawn consistentwith this instant permit, if approved, would come from the Upper Floridan aquifer on the Reserve. The County's experts were conservative in the assumptions used in the groundwater model. It was assumed there would be no lateral water flow into the model area and no recharge. In addition, the model called for all pumps to run simultaneously at a maximum drawdown of 12.65 mgd for 90 days rather than at the requested quantity of 9.625 mgd. Utilization of these assumptions provided a scenario wherein "severe" impacts would be encountered. Based on the testing and the modeling done, expert opinion was that there would be no quantity or quality changes that would adversely effect water resources including ground and surface water. This meets the criteria of Rule 40D-2.301. This opinion was concurred in the District's hydrology expert. Nonetheless, in its proposed approval, the District has imposed special permitting conditions which require the County to monitor, analyze, and report water quality and water table level information to the District on a monthly and annual basis. When it evaluates the information supplied by an applicant relating to ground water monitoring, the District is required to consider certain presumptions set forth in its Basis For Review. For example, the District presumes that if there is a drawdown of more than 1 foot in the surficial aquifer at a wetland, adverse environmental impacts will occur. In the instant case, the County model concluded that the actual drawdown in the surficial aquifer at the Carlton Reserve is less than .6 of onefoot and, therefore, there should be no adverse environmental impact resulting from the withdrawal. Nonetheless, the County has developed several plans designed to provide information on environmental impacts which will continuously monitor such parameters as rainfall and evaporation, wetlands hydroperiod changes and vegetative changes in the wetlands to detect any changes which might be attributed to the water pumping. These plans have been made special conditions to the water use permit, and in the opinion of the County's ecology and hydrology expert, would enable the County to adequately monitor and detect any pertinent changes to the pertinent factors concerned on the Carlton Reserve. If wetland changes are detected, a contingency plan will be in effect which will require an alteration of pumping schedules or other action to minimize any adverse impacts. The District expert in wetlands and wildlife habitat has opined that these measures, with which he is familiar, are adequate to insure that adverse impacts to the wetlands will not occur. This is consistent with the provisions of Rule 40D-2.301(1). As was stated previously, the water to be drawn pursuant to this permit will be drawn from the Upper Floridan aquifer. This water is not potable but is treatable and is the lowest quality water which can be economically used by the County. Water of a lower quality does exist in the Lower Florida aquifer, but it is not economically treatable, and, in addition, use of this Lower Floridan aquifer might cause vertical movement of the poorer quality water into the upper strata. For all practical purposes,then, the lowest quality water available to it will be used by the County and this is consistent with the District's basis for review. Expert testimony indicates that saline water will not be infused into the Upper Floridan aquifer. Salt water intrusion generally occurs when groundwater is brought to a level below sea level. Even at the point of maximum actual drawdown as a result of pumping on the Reserve, the fresh water level will remain at least 20 feet above sea level, and as a result of the difference in water level, no saline water intrusion into the fresh water supply will occur even though salt water intrusion can also occur as a result of upward vertical movement of lower quality water due to withdrawal. The District's hydrologist and reviewing official also concluded that because of the confining layer below the aquifer from which water will be withdrawn, there would not be any significant upward movement of lesser quality water. The District's basis of review also envisions an aquifer pollution if a proposed withdrawal would spread an identified contamination plume. Here no contamination has been identified in the area from which the water will be drawn, and therefore, contamination would not be spread. The Basis for Review also infers there will be adverse impact to off site land if there is a significant drawdown of surface water bodies or if damage to crops or other vegetation can be expected. Here, the water table drawdown at the boundary of the Carlton Reserve is anticipated at less than .3 of one foot and any drawdown further out from the Reserve can be expected tobe even less. As a result, no adverse impact to existing off site land useage is expected. With regard to Rule 40D-2.301(1)(i), relating to an adverse impact on existing legal uses, the District presumes that no adverse impact will exist if the drawdown in the water table is no more than 2 feet at an affected well, or the potentiometric surface at the well is not lowered by more than 5 feet. Here, again applying the County's groundwater modeling demonstrates that the drawdown at its worst, in the Upper Floridan aquifer, would be no more than 2.9 feet at the Reserve boundary and much less at the Petitioners' wells. Both Mr Bishop's and Ms. Jones' wells are approximately 7.5 and 7 miles, respectively, from the closest well on the Reserve property. Ms. Jones' well is drilled into the intermediate aquifer which is above that which the County proposes to use and should not be impacted. Mr. Bishop draws water from the intermediate and surficial aquifers, both of which are above the Upper Florida aquifer identified for use here, and the groundwater modeling would suggest that his well would not be impacted either. Sarasota County's application contains reference to numerous proposals for water conservation measures which it intends to implement or has already implemented. It has adopted ordinances to enforce the District's watering restrictions and is currently implementing a block inverted use rate structure to promote conservation. It has developed programs for use in the schools outlining water conservation efforts and is developing programs topromote the increased use of treated waste water for golf course irrigation. The requirement for a water conservation plan such as is described and envisioned by the County is a condition of the water use permit proposed, and in addition, the County has adopted an Ordinance, (90-38) which modifies its building code to require installation of water conservation devices in new buildings erected in the County. It has developed proposals for conservation measures such as water auditing, meter testing, leak detection, system looping, and pressure reduction, and has selected the EDR process of water purification as the most efficient use of groundwater resources. Petitioner, Bishop, testified to his belief that approval of this permit and the resultant water withdrawal on the Carlton Reserve would necessitate an expansion of the boundaries of the District's Eastern Tampa Bay Water Use Caution Area to a point where his property would be encompassed therein. In support of his position, Mr. Bishop offered a notice to the effect that new ground water withdrawals would not be permitted within a certain "most impacted area" within the caution area. There was, however, no independent evidence from hydrologists, geologists, or other conservationists, or individuals familiar with the water conservation process, to support Mr. Bishop's contention that either the boundaries would be expanded or that withdrawal of the proposed permitted amounts of water from the Carlton Reserve would cause the boundaries to be expanded. By the same token, Mr. Bishop's contention that theproposed withdrawal from the wells here in issue would adversely effect his ability to draw water from his existing well was not supported by any expert testimony or documentary evidence tending to support or confirm his contention. He had no evidence tending to contradict the County's and District's experts, all of whom indicated there would be no adverse impact on the environment or water resources as a result of the instant permit. Similarly, neither Petitioner offered any evidence of a demonstrative nature that would draw any connection between the proposed permitted withdrawals and potential salt water intrusion and water level drawdown in their wells. The County introduced construction permits issued by its own health department covering 8 of the 12 wells which have been drilled on the Carlton Reserve as test wells. These wells were clearly sunk pursuant to an agreement between the District and the County's public health unit which delegates authority for water well construction permitting to the County. Taken together the documentation indicates that these 12 wells on the Reserve were installed and permitted pursuant to and consistent with appropriate permitting processes, and the testimony of Mr. Bassarab, the County's expert who oversaw the installation of the wells, reflects they are appropriately grouted and sealed. Therefore, there will be no mixing of lower quality water from the lower portion of the Floridan aquifer with the better quality water from the upper portion of that aquifer. The County's evidence clearly refutes the allegation by Mr. Bishop that the 12 test wells currently existingon the Carlton Reserve were neither permitted nor inspected as required by the District. County Commissioner Hill, who testified on behalf of the Petitioners, indicated that the wells applied for here are unnecessary and an inappropriate expenditure of County funds. She claimed there are other valid sources of water available to the County, including that extracted from excavated shell pits and seawater from the Gulf of Mexico which could be treated and desalinated. The Commissioner's comments as to alternate sources are not specifically rebutted. However, she is neither an expert in hydrology or hydrogeology, and her testimony is not persuasive. While other water sources may exist, the better evidence clearly indicates that those sources are not sufficient to meet the County's needs or are otherwise inappropriate for use by the County in sufficient quantity to satisfy those needs.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that consumptive water use permit No. 208836.00, providing for authorized quantities as outlined in the intent to issue, subject to conditions contained therein, be issued to Sarasota County. RECOMMENDED in Tallahassee, Florida this 5th day of September, 1991. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONERS: Rejected as not supported by the evidence. Accepted. Accepted. - 8. Resolved against the Petitioners on the basis information presented by Respondents. 9.- 13. Accepted and incorporated herein. 14. - 16. Accepted and incorporated herein. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. - 23. Accepted. Accepted but not dispositive of any issue. Accepted. & 27. Noted as citation of authority. Rejected. & 30. Accepted as restatements of evidence but not as Findings of Fact. 31. Irrelevant. 32. Rejected 33. & 34. Not a error is, in fact, it is such. 35. - 38. Irrelevant. 39. - 43. Accepted. 44. Accepted. 45. Rejected. 46. Accepted and incorporated herein. 47. & 48. Rejected as a mere citation of testimony. 49. Not understandable. Not a Finding of Fact. 50. Accepted. 51. Evidence is acceptable. 52. Not sufficiently specific to rule upon. 53. Not proven. 54. Not specific. 55. & 56. Rejected. FOR THE RESPONDENTS: 1. - 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. 18. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. - 32. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 37. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 43. Accepted and incorporated herein. Accepted. Accepted and incorporated herein, - 48. Accepted and incorporated herein. Accepted - not a Finding of Fact. Accepted and incorporated in substance herein. Not correct as stated. Sarasota County will not be withdrawing saline water from the upper Floridan aquifer. The remaining discussion is accepted. Accepted and utilized. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. Accepted. 61 - 63. Not Findings of Fact but comments on the evidence. Accepted and incorporated herein. & 66. Not Findings of Fact. COPIES FURNISHED: Wyatt S. Bishop, Jr. 5153 Tucumcari Trail Sarasota, Florida 34241 Joan Jones 719 East Baffin Road Venice, Florida 34293 William A. Dooley, Esquire Nelson, Hesse, Cyril, Smith, Widman, Herb, Causey & Dooley 2070 Ringling Blvd. Sarasota, Florida 34237 Cathy Sellers, Esquire Steel, Hector & Davis 215 S. Monroe Street Tallahassee, Florida 32301-1804 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, Esquire Vivian Arenas, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether the Southwest Florida Water Management District (District) should issue water use permit (WUP) No. 2004912.006 to the City of Lakeland (City), and if so, how much water should be allocated under the permit and what conditions should be imposed on the allocation, particularly in regard to withdrawals from the City's Northeast Wellfield (NEWF).
Findings Of Fact Introduction This is an unusual case in that the District gave notice of its intent to issue a permit that the City does not want and that the District staff testified that the City is not even entitled to based upon the information submitted prior to and at the final hearing. That said, there is no disagreement between the parties that a permit should be issued to the City. Indeed, despite the District Staff's testimony that the City failed to provide “reasonable assurances” prior to or at the final hearing on a variety of issues, the District takes the position in its PRO that a permit should be issued to the City, subject to various conditions and limitations. There is also no disagreement between the parties that the permit should include an allocation of 28.03 mgd from the City’s Northwest Wellfield (NWWF). The main areas of disagreement between the District and the City are the duration of the permit; the total allocation of water under the permit; and, perhaps most significant, the total allocation from the NEWF. Parties The City is an incorporated municipality located in Polk County. The City is within the boundaries of the District and is within the Southern Water Use Caution Area (SWUCA) designated by the District. The City is the applicant for the WUP at issue in this case, No. 20004912.006. The City operates a public water utility that provides potable water and wastewater services to customers in and around the City. The utility’s water service area extends beyond the City limits into surrounding unincorporated areas of Polk County. The District is the administrative agency responsible for conservation, protection, management and control of the water resources within its geographic boundaries pursuant to Chapter 373, Florida Statutes, and Florida Administrative Code Rule Chapter 40D. The District is responsible for reviewing and taking final agency action on the WUP at issue in this case. Stipulated Facts The parties stipulated that the City’s substantial interests have been adversely affected by the District’s intent to issue the proposed permit, and that the proposed permit is different from the permit that the City applied for. The parties also stipulated that there is reasonable assurance that the City’s proposed water use will not interfere with a reservation of water as set forth in Florida Administrative Code Rule 40D-2.302; that the proposed use will not significantly induce saline water intrusion; that the proposed use will incorporate the use of alternative water supplies to the greatest extent practicable; and that the proposed use will not cause water to go to waste. The City’s Wellfields Overview The City obtains the water that its water utility provides to its customers from two wellfields, the NWWF and the NEWF. The NWWF is located north of Lake Parker in close proximity to Interstate 4 and Kathleen Road. It provides water to the Williams Water Treatment Plant, from which the water is distributed throughout the City water utility’s service area. The NWWF is located on the Lakeland Ridge, which is a geographic feature that is approximately 250 to 260 feet above sea level. The Lakeland Ridge has a thick clay intermediate confining unit that isolates the surficial aquifer from the underlying aquifers. The NEWF is located to the north of Interstate 4, adjacent to Old Polk City Road. It provides water to the Combee Water Treatment Plant (Combee), from which the water is distributed throughout the City water utility’s service area. The NEWF is located at an elevation of approximately 135 feet above sea level. The surficial aquifer at the NEWF is relatively thin, and the intermediate confining unit at the NEWF is not as thick as it is at the NWWF. The Upper Floridan Aquifer (UFA) begins at approximately 65 below land surface at the NEWF. The City’s water treatment plants are traditional lime softening plants and are not able to treat brackish groundwater or surface water to the extent necessary for human consumption. It would be cost-prohibitive to implement a process to treat brackish water at the plants. Relevant Permitting History The City’s water utility has been in operation for more than 100 years, and the NWWF has been in operation since at least the early 1980’s. The earliest permit for the NWWF contained in the record is permit No. 204912, which was issued by the District in January 1987. The permit authorized average annual withdrawals of 28.3 mgd, and had an expiration date of January 1993. The NEWF was first permitted by the District in December 1989. The permit, No. 209795.00, authorized the City to pump an average of 9.0 mgd from the NEWF. The permit had a six-year duration, with a December 1995 expiration date. The permits for the NWWF and the NEWF were combined into a single permit in October 1993. The permit, No. 204912.03, authorized the City to pump a total of 28.1 mgd, with 9.0 mgd from the NEWF. The permit had a 10-year duration, with an October 2003 expiration date. In December 2002, the City's WUP was administratively modified pursuant to the District’s SWUCA rules. The modified permit, No. 20004912.004, did not change the permitted quantities at the NEWF or the 2003 expiration date, but the total allocation was reduced to 28.03 mgd. In October 2003, prior to the expiration of the existing permit, the City submitted an application to renew and modify its WUP permit. The application requested a 20-year permit with a total allocation of 32.8 mgd, with up to 16.0 mgd from the NEWF. During the permit review process, the City amended its application to increase the requested total allocation by 4.0 mgd (from 32.8 mgd to 36.8 mgd) and to decrease the requested duration of the permit by five years (from 2023 to 2018). The 36.8 mgd requested by the City was to be allocated between the NWWF (28.03 mgd) and the NEWF (8.77 mgd). The City supplemented its application during the permit review process in response to multiple requests for additional information and clarification from the District. The information provided by the City in support of the application is extensive; the “permit file” received into evidence consisted of approximately 2,500 pages, and the entire file is approximately twice that size.2 The review process culminated in what the District staff considered to be a “negotiated permit”3 that would initially authorize pumping of 33.03 mgd, with 28.03 from the NWWF, 1.5 mgd from the NEWF, and 3.5 mgd from a production well to be constructed at Combee. The proposed permit includes a phasing schedule that would allow for increased withdrawals -- up to 35.03 mgd total and 4.0 mgd from the NEWF4 -- if the City is able to demonstrate to the District’s satisfaction that the increased pumping will not cause adverse environmental impacts. The District gave notice of its intent to issue the proposed permit on December 29, 2006, and the permit was placed on the “consent agenda” for the District Governing Board’s meeting on January 30, 2007. On January 23, 2007, before the proposed permit was considered by the Governing Board,5 the City timely filed a petition challenging the proposed permit. The petition alleges that the proposed permit does not allocate sufficient water to meet the City's projected population demands in 2018 and that it does not allocate water quantities from the NEWF and the NWWF in the manner requested by the City. The NEWF The NEWF is approximately 880 acres in size. Wetlands comprise approximately half of the site. The NEWF is located within the boundaries of the Green Swamp, which is an area of critical state concern (ACSC) designated under Chapter 380, Florida Statutes. The Green Swamp is a hydrologically and environmentally important feature of central Florida encompassing thousands of acres of cypress wetlands, marshes, and forests. In 1992, a task force recommended that public water supply wellfields “of capacity greater than 1.8 mgd (average 3.6 mgd maximum)” from the UFA be discouraged in the Green Swamp ACSC in favor of wells from the Lower Floridan Aquifer in order to “mitigate drawdown impacts to the surficial aquifer system and resulting dehydration of wetlands . . . .” There is no evidence of that recommendation being formally adopted by the District or any other governmental agency, and the District does not have more stringent permitting criteria for WUP applications in the Green Swamp, except that it considers potential adverse impacts to all isolated wetlands and not just those larger than one-half acre in size.6 The City installed five 16-inch production wells at the NEWF, along with a number of associated monitoring wells. The production wells, which are cased to approximately 120 feet with a total depth of approximately 750 feet, pump water from the UFA. Pumping at the NEWF started in October 2005. The City has been pumping 4.0 mgd from the NEWF since that time. The City has spent over $34 million to bring the NEWF into service. The costs directly related to the acquisition of the NEWF site and the installation of the wells at the site account for approximately $7.6 million of that amount; the remainder of the costs are for associated infrastructure, such as the installation of water lines from the NEWF site and the construction of Combee. The wetlands on the NEWF site are predominantly isolated cypress wetlands, although there are some connected systems. Isolated wetlands are more susceptible to impacts from water deprivation than are connected wetland systems. The uplands on the NEWF site consist primarily of open pasture and fields and areas of planted pines. Extensive drainage improvements were constructed on the NEWF site between 1941 and 1980 when the site was being used as improved pastureland for cattle grazing and managed woodland for logging and silviculture. The improvements included the construction of a network of drainage ditches, culverts, roads, a grass landing strip, and a gas pipeline. The intent and effect of the drainage improvements was to remove surface water from the onsite wetlands. Historical aerial photographs show that these efforts were successful. The wetlands on the NEWF were adversely impacted by the drainage improvements, but for the most part, they are still functioning, albeit low-quality wetlands. The extensive ditching on the NEWF site continues to have an adverse impact on the wetlands even though the ditches have not been maintained and do not function as efficiently as they once did. The planted pine trees on the NEWF site may also be adversely affecting the wetlands through increased evapotranspiration from the surficial aquifer. However, the evidence was not persuasive regarding the extent of the impact from evapotranspiration. The present condition of the wetlands at the NEWF is not the result of recent activity. The biological indicators in the wetlands (e.g., adventitious roots on cypress trunks, large oak trees in the wetlands, red maple trees in areas that had at one time been dominated by cypress trees) show that the degraded condition of the wetlands dates back decades. The progressive draining and degradation of the wetlands caused by the ditching and other drainage improvements constructed on the NEWF site is apparent in the historic aerial photographs of the site. The size of the wetlands and the “hydrologic signatures” (e.g., standing water around the rims of wetlands and across the site, extensive cypress canopies, etc.) visible on earlier aerial photographs are less visible or non- existent in more recent aerial photographs. The wetlands on the NEWF site have shown no biological indicators of impacts from the pumping at the NEWF that started in October 2005. This does not necessarily mean that the pumping is not impacting the wetlands because the parties' experts agree that it can take many years for such biological indicators to appear. The more persuasive evidence establishes that the historical drainage improvements on the NEWF site were the primary cause of the degraded condition of the wetlands.7 The more persuasive evidence also establishes that unless altered, the drainage improvements on the NEWF site will continue to have an adverse effect on the wetlands. The City proposed a conceptual Wetland Improvement Plan (WIP) that is designed to restore and enhance the wetlands on the NEWF. A central component of the WIP is the reengineering and alteration of the drainage features by installing “ditch blocks” in some areas and culverts in other areas. The WIP also includes not replanting the pine trees on the NEWF site once the existing planted pines are harvested. The ditch blocks and other modifications to the drainage features are intended to hold water on the NEWF site and redirect it to the wetlands. This will help to hydrate the wetlands, increase soil moisture levels, and allow more water to percolate into the surficial aquifer following rain events. The District staff expressed some concerns with the City’s WIP at the final hearing, but acknowledged that the plan’s “conception . . . has a lot of merit.” Indeed, in its PRO, the District recommends the “installation of ditch blocks and similar measures at the [NEWF] site.” The WIP, if properly implemented, has the potential to enhance the wetlands by returning them to a more natural condition. The City will likely need an Environmental Resource Permit (ERP) from the District before any system of ditch blocks can be installed. The details of the WIP can be worked out during the ERP permitting process.8 A good monitoring plan is part of providing reasonable assurances. The parties agree that a monitoring plan should be included as a permit condition, and the EMMPs attached to the parties’ respective PROs appear to be materially the same. The City has monitored the wetlands at the NEWF since 1994, pursuant to a specific condition in the 1993 WUP permit. The methodology used by the City to monitor the wetlands was approved by the District, and despite the fact that the City has submitted biannual monitoring reports to the District for almost 14 years, the District expressed no concerns regarding the methodology or results of the monitoring until recently. The District commenced its own wetland assessment procedure at the NEWF in May 2007, which included setting “normal pools” in several of the wetlands. “Normal pool” describes the level at which water stands in a wetland in most years for long enough during the wet season to create biological indicators of the presence of water. The establishment of normal pools was part of the District’s efforts to establish the “existing natural system” against which any post-withdrawal adverse impacts at the NEWF would be measured in accordance with Section 4.2 of the Basis of Review for Water Use Permit Applications (BOR).9 Normal pools could not be established in several of the wetlands because there was no measurable standing water above the surface in the wetland. District staff observed similar conditions –- i.e., no standing water in the wetlands –- on at least one occasion following a significant rain event prior to the start of pumping at the NEWF. The District does not have a rule governing the setting of normal pools, but the City’s experts did not take issue with the normal pools set by the District or the methodology used by the District to set the normal pools. The EMMP proposed by the City is an extensive monitoring plan that incorporates a series of onsite monitoring wells, wetland monitoring stations for vegetation and hydrogeology, monitoring of pumping rates and pumping data, and monitoring of rainfall data. The EMMP will make use of the extensive data that has been collected on the NEWF site since the 1990’s as well as the normal pools set by the District, and if properly implemented, the EMMP will detect any potential adverse impacts as they occur to allow for remedial mitigation. The District staff acknowledged at the final hearing that the EMMP proposed by the City “with some minor modifications” is an appropriate plan to monitor changes in the wetlands at the NEWF. The necessary "minor modifications" were not explained at the final hearing, and as noted above, there does not appear to be any material difference in the EMMPs attached to the parties’ respective PROs. The Green Swamp is generally viewed as a “leaky” area, with little or no confinement between the surficial aquifer and the Floridan aquifer. Regional data, including studies by the United States Geologic Survey (USGS) and the District, reflect that the NEWF is located in a “transitional area” between areas of little or no confinement to the north, northwest, and east of the NEWF and areas of thicker confinement to the south. However, at least one study (published in 1977 USGS report) shows the NEWF in an area designated as "poor" for its relative potential for downward leakage. Regional data may be used to gain knowledge about the aquifer properties at a potential well site, but such data is not a valid substitute site-specific data. Indeed, the location of the NEWF in a “transitional area” makes site-specific data even more important. The City used geologic cross-sections (e.g., soil borings and core samples) at the NEWF to determine the site’s lithologic characteristics. By contrast, the District relied primarily on USGS reports and other regional data to postulate as to the lithologic characteristics of the NEWF. As a result, the City’s position regarding the lithologic characteristics of the NEWF was more persuasive than the District’s position. The lithology of the NEWF site consists of a shallow, sandy surficial aquifer, which extends to a depth of 3 to 5 feet, proceeding downward to sandy clay and clay sand semi- confining layers, alternating with impermeable clay units, interspersed with an intermediate aquifer composed of sandy clays and clay sands that contain water, proceeding downward to the limestone of the UFA. The presence of clay layers between the intermediate aquifer and the UFA, together with clay layers between the intermediate aquifer and the surficial aquifer, provide two layers of protection between the pumped aquifer and the surficial aquifer and wetlands, and serve to ameliorate any impacts to the surficial aquifer caused by withdrawals from the UFA. “Leakance” is a measure of vertical conductivity that describes the rate at which water flows through a confining unit. As a result, leakance is one of the most important factors to consider when modeling surficial aquifer impacts and potential wetland impacts from groundwater pumping. Generally, a higher leakance value is an indication of a “leakier” system with less confinement between the surficial aquifer and the UFA. The “leakier” the system, the greater the impacts of pumping on the surficial aquifer will be. The District contends that the confining unit underlying the NEWF is “leaky” and that the pumping at the NEWF is likely to directly and adversely affect the onsite wetlands. However, the more persuasive evidence establishes that the lower leakance value derived by the City based upon the site-specific lithology of the NEWF and the data from the aquifer performance tests (APTs) conducted at the NEWF is more accurate than the higher leakance value urged by the District. The purpose of an APT is to determine the hydrologic parameters of an aquifer. In particular, an APT is used to determine the transmissivity, leakance, and storage values of the aquifer. Transmissivity is a measure of how easily water flows through the ground, and storage is a measure of the amount of water in the porous spaces of the aquifer. Generally, a higher transmissivity value and a lower storage value indicate better confinement. There have been three APTs conducted at the NEWF. The first APT (APT-1) was conducted in 1989 as part of the initial permitting of the NEWF. A high transmissivity value and a low storage value were calculated in APT-1. A leakance value was not calculated. The results of APT-1 were presented to the District to justify the City’s request to pump 9.0 mgd from the NEWF, which the District approved. The 1993 permit combining the NWWF and the NEWF required the City to conduct a long-term APT in order to “determine the leakance parameter between the surficial and intermediate aquifers and the leakance parameter between the intermediate and Upper Floridan aquifers.” The permit stated that if the hydrologic parameters obtained in the APT were different from those used in the model submitted in support of the initial WUP, the City would have to revise the model and, if necessary, modify the WUP to reduce withdrawals. This second APT (APT-2) was a seven-day test conducted by the City in January 2001 in accordance with a methodology approved by the District. An “exceedingly low” leakance value of 4.5 x 10-4 gallons per day per cubic foot was calculated in APT-2. The transmissivity and storage values calculated in APT- 2 were essentially the same as the values calculated in APT-1. The District expressed concerns with the results of APT-2, and in December 2001, the District advised the City that it should “proceed with caution during the planning of infrastructure (pipelines) for the [NEWF]” because the “wellfield may not be able to produce the volume of water the City has stated that would like from the wellfield, without causing adverse impacts.”10 Based upon these concerns, the District conducted an APT (APT-3) at the NEWF in April and May 2003. The parties’ experts agree that data from APT-3 is reliable, but the experts disagree in their interpretation of the data, particularly in regards to the leakance value. The City’s experts calculated a leakance value of 1.4 x 10-4 feet per day per foot, which is a low leakance value. The expert presented by the District, Dann Yobbi, calculated a higher leakance value of 3.4 x 10-3 feet per day per foot, which suggests relatively “leaky” aquifer. The leakance value calculated by the City’s experts is more persuasive than the value calculated by Mr. Yobbi because Mr. Yobbi did not “de-trend” the data from APT-3 based upon the general declines in water levels occurring at the time of APT-3. Indeed, Mr. Yobbi testified that he is in the process of revising his report on APT-3 to address this issue and he acknowledged that the surficial aquifer showed only a “slight response” to the pumping during APT-3. The leakance value calculated by the City’s experts in APT-3 is consistent with the leakance value calculated in APT-2. The transmissivity and storage values calculated in APT-3 are also consistent with the values calculated in APT-1 and APT-2. The reliability of the leakance values and other aquifer parameters calculated by the City’s experts for the NEWF is confirmed by water level data compiled by the City pursuant to the monitoring requirements in the existing WUP. The water level data was collected from monitoring wells at the NEWF in the surficial aquifer, the intermediate aquifer, and the UFA. The City began collecting this data in 1994 and it continues to collect and report the data to the District as required by the existing WUP. The water level monitoring data reflects that the surficial aquifer at the NEWF responds almost immediately to rain events. By contrast, the intermediate aquifer and UFA show a more subdued response to rainfall events, which is indicative of good confinement, especially between the UFA and the surficial aquifer. The water level monitoring data shows that rainfall or lack of rainfall is the major controlling factor relative to the rate of surficial aquifer recharge at the NEWF. The water level monitoring data since pumping began at the NEWF shows that the pumping at 4.0 mgd is having a minimal impact on the surficial aquifer at the NEWF. Indeed, the more persuasive evidence establishes that the general decline in water levels that has been observed in the monitoring wells at the NEWF over the past several years is more likely than not attributable to the severe drought in the area and the onsite drainage features, and not the pumping at the NEWF.11 Moreover, the more persuasive evidence shows that following the start of pumping at the NEWF in October 2005, the water levels in the surficial, intermediate, and Floridan aquifers returned to the historic patterns of up and down response to rainfall events shown throughout the thirteen-year period of record: the surficial aquifer fills quickly (as it receives the rainwater directly) and empties quickly (through a combination of surface drainage, evapotranspiration, evaporation, and leakage), while the UFA responds with more gradual rising and falling (as water enters the aquifer through recharge areas and slowly percolates into the aquifer through more confined areas). The analysis of the water level data collected during APT-3 showed a similar trend in the rates of decline in the surficial aquifer as were reflected in the hydrographic record of the monitoring well data collected by the City since 1994. The natural, post-rainfall rate of decline under non-pumping conditions was consistent with the rate of decline observed during pumping conditions in APT-3. In sum, the interpretation of the water level data by the City’s experts was more persuasive than the interpretation by the District’s experts. Modeling of Predicted Drawdowns and Impacts The City utilized two different models to predict drawdowns from the proposed pumping at the NWWF and NEWF: the USGS “Mega Model” and the District’s District-Wide Regulation Model (DWRM). The models incorporated regional data published by the USGS and the District as well as site-specific data from the NEWF, including the lithologic information collected through soil borings and the hydrologic parameters of the aquifers calculated in APT-3. The models were calibrated and de-trended to remove “background conditions” (e.g., regional water level declines) so that the models would only show the predicted effects of the pumping. Once the calibration was complete, the models were run to simulate the effect of the pumping on the groundwater flows in the area. The models produced contour maps that showed the predicted drawdowns in the surficial aquifer as a result of the pumping. The USGS Mega Model predicted that pumping the NEWF at 8.77 mgd would result in drawdowns of approximately 0.5 foot in the surficial aquifer in and around the NEWF. The DWRM model predicted a 0.18 foot drawdown in the surficial aquifer in and around the NEWF when pumping the NEWF at 4.0 mgd, and a drawdown of 0.4 foot when pumping at 8.77 mgd. The same models were used to predict the “cumulative” drawdowns by taking into account pumping by existing legal users as well as the pumping at the NWWF. The cumulative models assumed pumping of 36.8 mgd from the City’s wellfields. The USGS Mega Model predicted that cumulative drawdowns in the surficial aquifer in and around the NEWF would be an additional 0.3 feet, with 8.77 mgd of pumping at the NEWF. The DWRM model predicted that the cumulative drawdowns in the surficial aquifer in and around the NEWF would be 0.4 foot with 4.0 mgd of pumping at the NEWF, and 0.6 foot at 8.77 mgd of pumping at the NEWF. The City utilized the 1995 data set of existing legal users in its cumulative DWRM modeling because that was the data set provided by the District. The difference between the 1995 data set and the more current 2002 data set is on the order of 20 mgd, which is inconsequential in comparison to the 1.1 billion gallons per day of withdrawals included in the model that are spread over the geographic extent of the District. The predicted drawdowns in the surficial aquifers in and around the NEWF would be considerably greater if the hydrologic parameters calculated by Mr. Yobbi were used in the DWRM model. For example, the District’s modeling predicted drawdowns between 1.0 and 1.2 feet in the surficial aquifer in and around the NEWF when pumping 1.5 mgd from the NEWF, 3.5 mgd from Combee, and 28.03 mgd from the NWWF. The wetlands experts presented by the parties agreed that the level of drawdown predicted by the City at the NEWF has the potential to adversely impact the wetlands on the site. The experts also agreed that there is no bright line as to the amount of drawdown that will adversely impact the wetlands. The City’s expert, Dr. Michael Dennis, testified that drawdowns in the surficial aquifer between 0.18 foot and 0.5 foot “probably” would not affect the wetlands at all, or at least “not measurably.” He also testified that drawdowns between 0.5 foot and one foot “are the drawdowns that you need to be concerned about.” The District’s expert, John Emery, testified that a drawdown in the surficial aquifer of 0.4 foot “could” adversely affect the wetlands if no mitigation is provided, but that a drawdown of 0.2 to 0.3 foot might not.12 The WIP is expected to increase the amount of water that gets to the wetlands on the NEWF site. However, the extent to which the WIP will increase the water levels in the wetlands and offset the predicted drawdowns in the surficial aquifer is unknown at this point. Limiting pumping at the NEWF to 4.0 mgd is reasonable and prudent based upon the uncertainty regarding the effectiveness of the WIP and the experts’ testimony regarding the level of drawdowns that likely would, and would not, adversely affect the wetlands at the NEWF. In sum, the more persuasive evidence establishes that the drawdown predicted at 4.0 mgd of pumping –- 0.18 foot (individually) and 0.4 feet (cumulatively) –- is not likely to adversely impact the already significantly degraded wetlands at the NEWF, particularly if the WIP is properly implemented. Demand Projections The City did not use the full 28 mgd allocated under its existing WUP. It pumped only 21 mgd in the 12 months preceding October 2003, when the permit was scheduled to expire; it pumped only 26 mgd in 2006; and the pumping for 2007 was expected to be approximately 1 mgd lower than the pumping in 2006. The City's WUP application contained population and demand projections for different years in the future. For 2014 (the permit expiration date proposed by the District), the “functional population”13 of the service area was projected to be 183,264 and the average demand was projected to be 29.5 mgd; for 2023 (the original permit expiration date requested by the City), the projections were 203,721 people and 32.8 mgd; and for 2018 (the permit expiration date now requested by the City), the projections were 192,176 people and 30.9 mgd. The projections in the WUP application were prepared in 2003, and City's primary consultant, Charles Drake, testified that the data was “accurate” and “reliable.” However, more recent data shows that the population projections in the WUP application were slightly understated. The more recent data is contained in the “Water Services Territory Population Estimates and Projections” reports prepared by the City's utility department in March 2006 and March 2007. The reports include estimates of the functional population for prior years, and projections of the functional population for future years. The estimates reflect the “actual” population for a given year in the past, whereas the projections reflect the “expected” population for future years. The estimates and projections in these reports, like the projections in the WUP application, were prepared in accordance with the methodology contained in the BOR. The District did not take issue with the projections in the reports or the WUP application. The estimated functional population of the service area in 2003, 2004, 2005, and 2006 exceeded the population projected for those years in the WUP application. On average, the projected populations for each year understated the “actual” populations by approximately 3,500 persons.14 Likewise, the population projections for future years in the March 2007 report are higher than the population projections for the same years in the WUP application. For example, the report projects that the functional population of the service area in 2014 will be 191,208 (as compared to 183,264 in the WUP application), and that population in 2018 will be 203,247 (as compared to 192,176 in the WUP application). The City presented “revised” population projections at the final hearing in City Exhibit 140. The revised projections were based on the projections in the March 2006 report, but also included data from the “water allocation waiting list” that is part of the City’s concurrency management system that was created by the City in response to legislation passed in 2005 requiring local governments to allocate and approve requests for water for new development. The population projections in City Exhibit 140 are 234,959 in 2014; 247,390 in 2018; and 264,556 in 2023. These projections include an additional 43,471 persons related to new development in the concurrency management system, as well as the additional 2,600 to 3,000 persons projected per year in the WUP application and the March 2006 report. The City failed to establish the reasonableness of the revised population projections. Indeed, among other things, the evidence was not persuasive that the additional population attributed to the new development in the concurrency management system is not already taken into account, at least in part, in the annual population increases projected in the March 2006 report.15 The most reasonable population projections for the service area of the City's utility are those in the March 2007 report.16 The record does not contain demand projections directly related to the population projections in the March 2007 report. However, demand projections for those population projections can be inferred from the WUP application (City Exhibit 1(a)(2), at 0036) and City Exhibit 140 (at page 0015). The 2014 projected population of 191,208 in the March 2007 report roughly corresponds to the projected population for 2018 in the WUP application (192,176) for which the projected demand was 30.9 mgd; and it also roughly corresponds to the projected population for 2008 in City Exhibit 140 (193,001), for which the projected demand was 28.7. Thus, in 2014, it is reasonable to expect that demand will be between 28.7 and 30.9 mgd. The 2018 projected population of 203,247 in the March 2007 report roughly corresponds to the projected population for 2023 in the WUP application (203,721) for which the projected demand was 32.8 mgd; and it also roughly corresponds to the projected population for 2009 in City Exhibit 140 (201,983), for which the projected demand was 30.2 mgd. Thus, in 2018, it is reasonable to expect that demand will be between 30.2 and 32.8 mgd. The demand projections in the WUP for 2014 (29.5 mgd) and 2018 (30.9 mgd) fall within the range inferred for the populations in the March 2007 report. Thus, even though the population projections in the WUP application for 2014 and 2018 are understated, the demand projections for those years in the WUP are still reasonable. The demand projections in City Exhibit 140 –- 35.3 mgd in 2014 and 36.6 mgd in 2018 –- are overstated as a result of unreliable population projections upon which they are based. Other Issues Duration of Permit The 1987 permit for the NWWF had a six-year duration, as did the original 1989 permit for the NEWF. The 1993 permit had a 10-year duration, but that permit did not increase the amount of authorized withdrawals; it simply combined the authorizations for the NWWF and the NEWF into a single permit. In this case, the City is requesting a permit that expires in 2018, which was a 15-year duration at the time the application was filed, but now is a 10-year duration. The District is proposing a permit with a six-year duration, expiring in 2014. The District is authorized to approve a WUP with a duration of up to 50 years. The District’s rules provide that the duration of the permit is to be determined based upon “the degree and likelihood of potential adverse impacts to the water resource or existing users.” The District’s rules require that in order for the District to approve a permit with a duration of more than 10 years, the applicant is required to present sufficient facts to demonstrate that such a permit is “appropriate.” Section 1.9 of the BOR provides “guidelines” regarding the duration of permits. The guidelines in the BOR are not binding on the District, but the nearly identical language in Florida Administrative Code Rule 40D-2.321 is binding on the District. The BOR provides that a six-year permit is to be issued for renewal permits “with modification to increase the quantity withdrawn by more than or equal to 100,000 gpd or 10% or more of the existing permitted quantities, whichever is greater.” The BOR and Florida Administrative Code Rule 40D- 2.321(2)(b) also provide that a six-year permit is to be issued “where the potential for significant adverse impacts are predicted.” The renewal permit that the City is seeking requests an increase of 8.7 mgd (from 28.1 mgd to 36.8 mgd) over the existing permitted quantities, which exceeds the 10 percent threshold in Section 1.9 of the BOR. Moreover, there is a potential for significant adverse impact from the renewal permit that the City is seeking. Accordingly, a six-year permit is appropriate under the District’s rules and the guidelines in the BOR. The City failed to demonstrate why a longer permit duration is appropriate under the circumstances of this case. District staff testified at the final hearing that the permit term should be calculated from the date the permit is issued, which will be some point in 2008. Therefore, the permit should have an expiration date of 2014. Offsite Impacts The City used the modeling described above to predict the drawdown in the UFA from the proposed pumping in order to determine whether there will be any adverse impacts on existing legal users. The predicted drawdown in the UFA in the vicinity of the NEWF ranges from 1.6 feet to 2.4 feet with 4.0 mgd of pumping at the NEWF, and between 3.4 feet and 5 feet with pumping at 8.77 mgd. The predicted drawdown in the UFA in the vicinity of the NWWF ranges from 10.0 to 14.0 feet, with 28.03 mgd of pumping at the NWWF.17 These predicted drawdowns are not expected to have any adverse impacts on existing legal users that have wells in the UFA. Most permitted wells in the UFA use vertical turbine pumps, which can easily accommodate fluctuations in water levels of five feet or more. The City has not received any complaints from existing users since it began pumping 4.0 mgd at the NEWF in October 2005. The pumping at the NWWF, which has been ongoing for more than 20 years, has not caused any adverse impacts to existing legal users. The City is required under the existing WUP to respond to any adverse impact complaints from existing legal users, and it is required to implement mitigation, as needed. In short, City is required to do whatever is necessary (e.g., relocating or increasing capacity of pump, lowering pipes) to return any well impacted by the pumping to its prior function. The City did not evaluate the potential impacts of its proposed pumping on unpermitted wells because the District does not maintain a database of unpermitted wells. However, the City acknowledges that if its pumping impacts an unpermitted well, it will be obligated to mitigate those impacts in the same manner that it is required to mitigate impacts to existing permitted users. The predicted drawdowns for water bodies in the vicinity of the NWWF and the NEWF that have designated Minimum Flows and Levels (MFLs) -- Lake Bonny, Lake Bonnett, and the Cone Ranch wetlands -- are minimal, on the order of 0.1 foot. The City evaluated the impacts of pumping on contaminated sites listed by the Department of Environmental Protection (DEP) in the vicinity of the NWWF and NEWF. Based upon the results of the modeling conducted by the City, there is no reason to expect that pumping at the NWWF and/or NEWF will have any measurable impact on those sites or lead to pollution of the aquifer. Potential Impacts of NWWF Pumping The only concern expressed by the District with respect to the pumping at the NWWF relates to the potential environmental impacts of the pumping on Lake Bonny and Lake Bonnett. The City agreed to include those lakes in its EMMP. Combee Combee is located approximately four miles south of the NEWF. There is a relatively thick clay confining unit at Combee, which, according to the District, makes it a better location for water withdrawals than the NEWF. The District conducted an APT at Combee in 2006. The hydrologic parameters derived from the APT, and the “preliminary modeling” performed by the District show that the City may be able to withdraw at least 3.0 mgd from wells at Combee. The proposed permit authorized pumping of 3.5 mgd from Combee. The proposed permit also included a phasing schedule pursuant to which pumping at Combee would be decreased to 3.0 mgd if pumping at the NEWF reached 4.0 mgd. The City expressed an interest in obtaining water from Combee throughout the permitting process. However, the City represented at the outset of the final hearing that the Combee well is “off the table because the City wishes to maximize the withdrawal allocation from [the NEWF].” The City stated in its PRO that it is “willing to consider permitting a production well at [Combee] as a potential mitigation resource, should unexpected adverse impacts require the City to divert production to a back-up resource.” The District stated in its PRO that the Combee well is “available for mitigation purposes," and that the City “should be encouraged to apply for a WUP for withdrawals from Combee up to 3.0 mgd to provide additional mitigation for pumping from the [NEWF].” Pump rotation Rotation of pumping between the wells in a wellfield is a standard practice, and it can be an effective mitigation technique. The City utilizes well rotation programs at the NWWF and the NEWF in order to minimize the stress on the production aquifers. Rotating pumping between the production wells at the NEWF is particularly appropriate because several of the wells are located in very close proximity to wetlands. Rotating the pumping will help to minimize the potential for adverse impacts to the wetlands. The actual rotation schedule is an operational decision that is made based upon observed conditions at the wellfield site, rather than something that is typically included in the WUP. Conservation and Reuse The City has a four-tiered conservation rate structure, modeled after the District’s graduated water-rates prototype. The rate structure imposes higher unit costs as individual consumption increases, thereby discouraging wasteful uses of water. The City has a comprehensive leak detection program aimed at preventing the loss of water within the City’s water distribution system. This program has helped to reduce the per- capita per-day consumption rate for the City by reducing the volume of water that is wasted before it is delivered to the consumer. The City has implemented irrigation restrictions aimed at reducing the quantities of water used by domestic customers for lawn and garden watering. The per capita rate of water consumption is a measure of the effectiveness of a water conservation program; the lower the figure, the better. The City’s per capita rate has increased in recent years, but its adjusted gross per capita rate has decreased. The adjusted gross per capita rate takes into account “significant users,” which are defined as non-residential customers other than golf courses that use more than 25,000 gallons per day or that represent more than five percent of the utility’s annual water use.18 The City’s per capita rate in 2005 was 145.69 gallons per day, and its adjusted gross per capita rate in that year was 132.01 gallons per day. The adjusted gross per capita rate may not exceed 150 gallons per day within the SWUCA. Thus, the City will be required to continue its conservation programs (and implement additional programs, if necessary) to ensure that its adjusted gross per capita rate does not exceed 150 gallons per day over the life of the permit. A portion of the City’s treated wastewater is reused for cooling at the City’s McIntosh Power Plant pursuant to a permit from DEP under Chapter 403, Florida Statutes. The DEP permit, No. FL0039772 (Major), states in pertinent part: Industrial Reuse: Effluent is reused . . . as a non-contact cooling water at the City of Lakeland McIntosh Power Generating Plant. The volume of water used on a daily basis fluctuates on an as needed basis. There are no restrictions on the volume that can be routed to the reuse system. The power plant evaporates water in the cooling process or returns cooling water into the Glendale WWTP for final treatment in the manmade wetlands treatment system. The reuse in the power plant is not required as effluent disposal. . . . . The remainder of the City’s treated wastewater is “blended” with the water used at the power plant in order to meet the conductivity standards in the DEP permit and the conditions of certification for the power plant and/or directly discharged into an artificial wetland system that ultimately discharges to the Alafia River. Section 3.1 of the BOR (at page B3-2) provides that “Water Use Permittees within the SWUCA who generate treated domestic wastewater are encouraged to demonstrate that . . . 50% of the total annual effluent flows is beneficially reused.” (Emphasis supplied). The BOR lists a number of uses of treated wastewater that are considered to be beneficial reuse. The list includes “industrial uses for cooling water, process water and wash waters” and “environmental enhancement, including discharges to surface water to replace withdrawals.” The City’s use of treated wastewater for cooling at the McIntosh Power Plant is a beneficial reuse under the BOR. The treated wastewater directly discharged by the City into the artificial wetland system is not a beneficial reuse under the BOR because it is not replacing surface water withdrawals. The BOR requires all users within the SWUCA to investigate the feasibility of reuse, and requires the implementation of reuse “where economically, environmentally and technically feasible.” The City has not recently undertaken a study or otherwise evaluated the feasibility of increasing its reuse. The draft permit attached to the District's PRO includes a specific condition requiring the City to "provide a comprehensive study of reuse opportunities encompassing the [City's] water, wastewater, and electrical utilities systems" by January 1, 2009.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the District issue WUP No. 2004912.006 with the terms and conditions contained in the draft permit attached to the District’s PRO, except that: The 2014 population referenced in the permit shall be 191,208; The adjusted gross per capita rate shall not exceed 150 gallons per day; Special Condition No. 2 shall be amended to authorize withdrawals from the NEWF at 4.0 mgd annual average and 4.8 mgd peak month, and the quantities listed in the Withdrawal Point Table for the NEWF wells shall be adjusted accordingly; Special Condition No. 4 shall be replaced with a reference to the EMMP and the conceptual WIP attached to the City’s PRO, and the list of monitoring stations in the EMMP shall be amended to include Lake Bonny and Lake Bonnet; and An additional specific condition shall be added encouraging the City to pursue a WUP for the Combee site for future water needs and/or for additional mitigation of the impacts of pumping at the NEWF. DONE AND ENTERED this 4th day of January, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 4th day of January, 2008.
The Issue The issue is whether Respondent Department of Environmental Protection may issue to Respondent Tampa Bay Water a variance from the requirements, in Rules 62-555.520(4)(c) and (d), Florida Administrative Code, that an application for a permit to construct and operate a drinking water system contain drawings of the project with sufficient detail to describe clearly the work to be undertaken and complete specifications of the project to supplement the drawings.
Findings Of Fact Inception of Tampa Bay Water, Consolidated Permit, and Other Documentation for the Production of Drinking Water Respondent Tampa Bay Water (TBW) is a wholesale public water supply utility. TBW is governed by a nine-member board of directors with one member each from the municipalities of Tampa, St. Petersburg, and New Port Richey and two members each from the counties of Hillsborough, Pinellas, and Pasco. The purpose of TBW is to use group resources to find regional solutions to the problems of water supply in the region. Over two million persons in the three-county area rely on TBW for their drinking water. The predecessor of TBW was the West Coast Regional Water Supply Authority (WCRWSA), which was created in 1974. The West Coast Regional Water Supply Authority was also a wholesale public water supply authority. However, the authority operated as a cooperative entity, and TBW operates as a regulatory entity. In 1996, WCRWSA sought to renew its permit from Intervenor Southwest Florida Water Management District (SWFWMD) to allow continued withdrawals from four of its eleven major wellfields. Concerned with the environmental impacts, such as drawdowns of the water levels of wetlands, streams, and lakes, from the environmental, if not regulatory, overpumping of the wellfields, SWFWMD denied the application for the quantities requested. An Administrative Law Judge at the Division of Administrative Hearings conducted a hearing and issued a recommended order finding adverse environmental effects from overpumping, but recommending that SWFWMD issue the requested permits subject to certain conditions. Subsequent negotiations resulted in the parties' entering into a series of agreements covering withdrawals from the four wellfields that had been the subject of the administrative hearing and seven more wellfields that were approaching repermitting (11 Wellfields), as well as a series of other matters. On May 20, 1998, WCRWSA, the three member counties, the three member municipalities, and SWFWMD entered into the Northern Tampa Bay New Water Supply and Ground Water Withdrawal Reduction Agreement (Partnership Agreement). The Partnership Agreement requires WCRWSA to bring one or more projects online, by December 31, 2002, to produce at least 38 million gallons per day (MGD) and, by December 31, 2007, to produce at least 85 MGD of new water supply. The Partnership Agreement requires SWFWMD to provide WCRWSA with $183 million toward eligible water supply projects. The Partnership Agreement notes that the then-current Master Water Plan of WCRWSA recognizes that "an aggressive conservation and demand management program is an integral component of a sustainable water supply." (Joint Exhibit 3, p. 31.) The Partnership Agreement notes that the then-current Master Water Plan states that the conservation program was expected to reduce use by 10 MGD per day by 2000 and 17 MGD by 2005. From the effective date of the agreement through December 31, 2002, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 158 MGD, based on a rolling 36-month average. For the next five years, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 121 MGD, based on an annual average. After that, effective December 31, 2007, the Partnership Agreement requires a reduction in pumping of the 11 Wellfields to 90 MGD, also based on an annual average. Three weeks after the execution of the Partnership Agreement, WCRWSA was reorganized into TBW in June 1998 through the execution of two documents: an Amended and Restated Interlocal Agreement dated June 10, 1998 (Interlocal Agreement), and a Master Water Supply Contract dated June 10, 1998. TBW assumed WCRWSA's rights and responsibilities under the Partnership Agreement. The Interlocal Agreement empowers TBW to produce and supply drinking water "in such manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of Water from concentrated areas." (Joint Exhibit 1, pp. 20-21.) The Interlocal Agreement incorporates the phased-in reductions in withdrawals from the 11 Wellfields that are set forth in the Partnership Agreement. The Interlocal Agreement notes that, if the Partnership Agreement provides for extensions of the deadlines, the deadlines contained in the Interlocal Agreement shall likewise be subject to extension. Applying to the 11 Wellfields, SWFWMD issued TBW a Consolidated Permit, which was issued on December 15, 1998, and became effective on January 1, 1999. Complementing the Partnership Agreement, which reflects SWFWMD's resource- development role, is the Consolidated Permit, which reflects SWFWMD's regulatory role. The Consolidated Permit incorporates the phased-in reductions of withdrawals, as set forth above, for the 11 Wellfields. Although the deadlines for phased-in reductions are conditioned on the funding to be provided by SWFWMD, pursuant to the Partnership Agreement, these deadlines are otherwise unconditional and firm. The Consolidated Permit expressly provides for extensions of deadlines, except the deadlines set for the phased-in reductions of withdrawals from the 11 Wellfields. The Consolidated Permit imposes upon TBW extensive responsibilities regarding environmental monitoring, reporting, and mitigation. These responsibilities extend to groundwater, wetlands, and surface waters, as TBW must, among other things, monitor and report levels in the surficial and Floridan aquifers and potentiometric surfaces in the Floridan aquifer in the vicinity of the 11 Wellfields, as well as in the vicinity of selected wetlands and surface waters. The Consolidated Permit sets specific "regulatory levels" for these resources. Present and Future Tampa Bay Water Facilities, Including the Surface Water Treatment Plant A majority of TBW's production facilities consists of the 11 Wellfields. In an effort to supplement these production sources so as to comply with the phased-in reduction deadlines set forth in the Consolidated Permit and other documents, TBW annually adopts a New Water Plan, which describes capital planning for drinking water production facilities. The June 2000 New Water Plan summarizes the requirements of the Partnership Agreement. The June 2000 New Water Plan notes that TBW reaffirmed its Master Water Plan and New Water Plan projects in April 2000. These projects include the Enhanced Surface Water System, which includes the Tampa Bay Regional Surface Water Treatment Plant (SWTP), Tampa Bay Reservoir Project (Reservoir), and projects obtaining water from the Alafia River, Hillsborough River, and Tampa Bypass Canal. Other projects, besides the Enhanced Surface Water System, include Seawater Desalination (Desal Plant). The June 2000 New Water Plan states that the Enhanced Surface Water System is eligible for a maximum of $120 million from SWFWMD, pursuant to its funding obligation under the Partnership Agreement. This case involves the means by which the SWTP will be permitted, and, in consideration of the manner of permitting, this case involves the means by which the SWTP will be designed and constructed. The June 2000 New Water Plan notes that TBW and USFilter Operating Services, Inc. (USFilter) have entered into a contract for the latter to design, build, and operate (DBO) the SWTP (DBO Contract). The June 2000 New Water Plan reports that USFilter is currently constructing an access road to the site. Among current issues, the June 2000 New Water Plan describes this case, noting that TBW obtained a variance from Respondent Department of Environmental Protection (DEP) allowing a design, build (DB) approach to permitting the SWTP. The June 2000 Water Plan states that the present challenge "has the potential to delay the completion of the [SWTP] by an estimated 8 months, subsequently delaying delivery of the initial 22 mgd (dry weather conditions) of new surface water to the regional system until May 2003 and more likely final acceptance of the [SWTP] to September 2003." (Joint Exhibit 5, p. 4.) (The accuracy of this statement is open to debate because SWFWMD granted an environmental resource permit for the SWTP project only on June 27, 2000--before which no significant alteration of the land could have taken place.) In the meantime, the June 2000 New Water Plan predicts a water supply shortfall of 100,000 to 2 million gallons per day in the South-Central service area of Hillsborough County. Addressing the SWTP, the June 2000 New Water Plan states that TBW purchased the site in October 1999 and released a Request for Proposals on July 19, 1999. Four pre-qualified DBO teams responded on October 18, 1999. The June 2000 New Water Plan erroneously states that TBW applied for a public drinking water facility construction permit (Water Treatment Permit) in October 1999. Actually, in September or October, TBW prefiled with the Hillsborough County Health Department (Health Department) its application for a Water Treatment Permit and paid the $7500 filing fee. The purpose of this courtesy filing or prefiling was to allow Health Department representatives to examine the application, including drawings and specifications for the SWTP, and perhaps expedite the approval process, once TBW filed a formal application. The June 2000 New Water Plan reports that the SWTP will have a peak day, surface water treatment capacity of 60 MGD and will be located on a 433-acre site near U.S. Route 301 and Broadway Avenue in central Hillsborough County. The June 2000 New Water Plan states that the SWTP project schedule calls for completion of construction by March 2003 with plant startup and testing in May 2003 and final acceptance testing in September 2003. The June 2000 New Water Plan estimates that detailed design, site permitting, and construction of the SWTP will cost $84.3 million, and the annual operation and maintenance expenses will be $7.9 million. As for the Desal Plant, the June 2000 New Water Plan reports that TBW will pursue a design, build, own, operate, and transfer (DBOOT) approach to acquire a plant to produce, initially, 25 MGD and capable of expansion by an additional 10 MGD. The June 2000 New Water Plan states that this plant will cost a total of about $96 million in capital expenses and about $19 million annually to operate. Procurement of the Surface Water Treatment Plant Design, Build, Operate Contract and Basis of Design TBW issued a Request for Proposals (RFP) that invited base and alternative proposals for the SWTP. TBW hired Parsons Engineering Sciences to prepare a preliminary design of the SWTP, so as to assist in the preparation of the proposals; although offerors could use alternative designs to the Parsons base design, all proposals had to meet the performance standards specified in the RFP. After publishing the RFP in papers and technical journals and on the Internet, TBW was able to prequalify five teams of offerors. Four of the five prequalified offerors submitted proposals. TBW received a total of nine proposals because each offeror submitted a base proposal and one alternative proposal, and one offeror submitted a second alternative proposal. At its January board meeting, TBW selected the USFilter proposal. No party filed a bid protest to the specifications of the RFP or the selection of USFilter and its team. After the selection of USFilter, TBW entered into negotiations with USFilter. During this process, USFilter agreed, at its expense, to add sand to the granulated activated carbon filters to remove fine particles more efficiently, even though it cannot recover the resulting cost of $1.5 million before or after the commencement of operations. TBW and USFilter entered into the DBO Contract on April 10, 2000 (DBO Contract). The DBO Contract identifies "Design Requirements" that "are intended to include the basic design principles, concepts and requirements for the [c]onstruction . . but do not include the detailed design or indicate or describe each and every item required for full performance of the physical [c]onstruction . . .." (Joint Exhibit 23, Section 1.2.6.) The "Design Requirements" are Schedule 6 to the DBO Contract. Schedule 6 contains all of the individual, technical specifications for the SWTP. Schedule 6 occupies two of the four volumes of large, three-ringed binders forming the DBO Contract. The DBO Contract identifies USFilter, Clark, and Camp Dresser & McKee, Inc. (Camp Dresser) as the DBO team for the SWTP project. Camp Dresser is providing design services, Clark is performing the construction, and USFilter is providing the operation and maintenance services for at least 15 years, as well as the financial guarantee, through its corporate parent. The DBO Contract provides TBW with a fixed construction cost, fixed operating costs, and guaranteed finished water quality. Schedule 8 assures that finished water quality will meet all applicable state and federal drinking water quality standards. Two witnesses at the hearing testified that TBW exacted from USFilter assurances of water quality that, as to certain parameters, will exceed applicable state and federal drinking water quality standards. The DBO Contract provides TBW with a firm completion date, subject to design modifications requested by TBW and uncontrollable circumstances, such as acts of God, raw water whose quality exceeds the maximum limits, or the delay caused by this case. A key document in this case is the Basis of Design Report (Basis of Design), which was prepared by the DBO team in April 2000. Acknowledging the phased-in withdrawal limitations and potential for fines for not meeting the deadlines set forth in the Consolidated Permit, the Basis of Design describes the purpose of the DBO process as follows: By utilizing the [DBO] approach for the [SWTP], [TBW] expects to secure substantial benefits . . .[,] includ[ing] costs savings, innovative design, reduced risk of schedule and cost excesses, long-term contracted facility operations, and maintenance efficiencies and guaranties. (Joint Exhibit 8, pp. 1-2.) The Basis of Design reports that the SWTP will be located on a 100-acre parcel within a 435-acre tract that will also accommodate facilities for groundwater treatment and storage of the treated groundwater, treated surface water from the SWTP, and treated saline water from the Desal Plant. The Basis of Design identifies the sources of raw water for the SWTF as the Tampa Bypass Canal, Hillsborough River, and Alafia River. Once online, the reservoir will help normalize quantities of available raw water throughout the dry season. The Basis of Design describes the main treatment process as pretreatment, including pH adjustment with sulfuric acid or caustic soda, powdered activated car feed, and ferric sulfate coagulant addition; coagulation, flocculation, and sedimentation using a high-rate ballasted sedimentation process known by its tradename as ACTIFLO; ozonoation for primary disinfection, taste and odor control, and partial conversion of dissolved organic carbon to an assimilable or biodegradable form; biologically active filtration for turbidity reduction, taste and odor control; reduction of biodegradable organic carbon; and post-treatment, including secondary disinfection using chloramines. The finished water will then be pumped into tanks for storage and blending before release into the distribution facilities. Distinguishing the DB process from the typical design, bid, build (DBB) process, the Basis of Design states: a very significant amount of process studies and pre-engineering was performed by the Project Team in support of its [DBO p]roposal. This work included a set of drawings covering all disciplines and developed to the 25 to 30 percent completion stage at a minimum with some drawings developed to a greater degree. This stage of drawing development is significantly beyond the sketches and diagrams usually provided in Basis of Design or Preliminary Design Reports. For this [Basis of Design,] the referenced drawings are attached and should be examined when reviewing this [Basis of Design]. As such, a relatively small number of figures are contained within this [Basis of Design]. (Joint Exhibit 8, pp. 1-4.) The Basis of Design notes that the Project Team conducted "pilot-scale" studies of the chosen treatment processes using Lake Manatee raw water. The purpose of these studies was to validate the selected treatment processes, provide water quality data, and establish appropriate operating criteria, such as coagulant dosages. The Basis of Design addresses raw water quality issues. One table sets out values for 30 different water quality parameters for each of the three raw water sources. The Basis of Design discloses expected water quality data for 11 water quality parameters. Of particular interest are total nitrogen and total phosphorus because, as noted in the Basis of Design, the algal life-cycle increases dissolved organic carbon and nutrient concentrations in reservoir water, and the "severity of this problem is impossible to predict." (Joint Exhibit 8, pp. 2-4.) The expected water quality values for total nitrogen and total phosphorus, respectively, are, on average, 0.8 and 0.55 mg/L and, at maximum, 1.6 and 2.1 mg/L. Each of the three surface waters approaches the average values, but none approaches the maximum values, for total nitrogen. The same is true for total phosphorus for the Tampa Bypass Canal and Hillsborough River. However, for the Alafia River, total phosphorus is 2.09 mg/L, so the raw water from the Alafia River may present a substantial treatment challenge, as it exceeds even the maximum expected value for total phosphorus. An error in Table 2-4 in reporting the maximum and average values of manganese (either the maximum value should be 0.02 mg/L or the average value should be 0.001 mg/L) and the omission of a turbidity parameter expressed in NTUs precludes analysis of these water quality parameters. However, the other expected parameters appear to reflect the actual water quality of these three surface waters. Section 4 of the Basis of Design describes the facilities and design criteria for the SWTP. This section begins with site grading, roadways, yardpiping, and stormwater management and extends to detailed discussions of the pretreatment and treatment processes, including the ACTIFLO, ozone contactor, and biologically active filtration. Urgency of New Means of Producing Drinking Water The SWTP is the hub of a network of production, storage, transmission, and distribution facilities that TBW plans to bring online in order to meet the requirements and deadlines set forth in the Consolidated Permit and other documents. The urgency for bringing this component of these new facilities online as soon as possible is due to environmental reasons, as well as the financial and legal reasons set forth above. Overpumping of existing wellfields has drawn down water levels in surface waters and wetlands, to the detriment of the overall level of biodiversity supported by these natural resources. Some lakes have been down 10 years, and a few have been down 40 or 50 years. During the recent drought, the City of Tampa, which obtains water from the Hillsborough River, lacked adequate volumes of surface water from which to produce sufficient finished water to meet the demand of its customers. Not surprisingly, these supply problems are accompanied by record withdrawals from the 11 Wellfields. Withdrawals in May and June of this year were the highest monthly withdrawals on record--208 MGD and 175 MGD, respectively. If the drought continues and TBW continues to meet the demands of its customers, TBW's withdrawals from the 11 Wellfields will exceed the permitted 158 MGD, on a rolling 36-month average, by April 2001. Wellfield overpumping has stressed the groundwaters. Although surface waters respond to substantial rains in as little as a day or two, groundwater takes significantly longer to respond. The surficial water table is as much as 20 feet below ground level, and the Floridan Aquifer is even deeper. The surficial aquifer does not begin to respond to substantial rains for one week, and the Floridan Aquifer begins to respond in two to four weeks. The condition of the surficial and Floridan aquifers affects the Hillsborough River and Tampa Bypass Canal, which are significantly recharged by the surficial and, sometimes, the Floridan Aquifer. The Floridan Aquifer is especially important to the Tampa Bypass Canal, whose rock bed has been breached. During dry periods, the two aquifers are the primary sources of recharge for these two surface waters. The Alafia River is more confined, but gets water from the Floridan Aquifer through two springs at the head of the river. TBW has already made substantial gains through conservation and has met the goal of nearly 10 MGD for 2000. Over the next 20 years, maximum potential gains are expected to be no more than 74-94 MGD. Conservation will continue to play an important role in securing adequate drinking water supplies in the Tampa Bay area, but conservation, even in conjunction with reclaimed water, will not suffice, especially when future population growth in the area is considered. TBW also manages wellfield production efficiently. Under its Optimized Regulatory Operations Plan, TBW collects and analyzes wellfield data to determine which wellfield to tap, notwithstanding specific limits set by wellfield, in order to minimize environmental damage. The consumptive use permits issued to TBW for the surface waters that will provide raw water to the SWTP restrict the amounts and timing of the removals. Additionally, a hydrobiological monitoring program requires the collection and analysis of data to safeguard against adverse effects in the rivers and, downstream, in the estuary. The contractual deadline for delivery of the SWTP is September 30, 2002. The timeframe for bringing online the SWTP necessarily relies on acceptance testing in the wet season, during which 60-65 percent of the annual rain occurs. The wet season extends from mid June to the end of September. Acceptance testing of the SWTP is imperative toward the end of this period because this is when the water quality of the surface waters bears the highest levels of the contaminants. Thus, if delays postpone beyond the wet season the point at which acceptance testing can take place, the postponement will effectively be until the next wet season and, possibly, the end of the next wet season. Permitting the Design, Build Process for the Surface Water Treatment Plant General The DB process envisioned by TBW would essentially break into phases the process by which TBW would obtain the necessary Public Drinking Water Treatment Construction Permit (Permit). The Permit initially would be based on "30 percent plans," which reflect about a 30 percent level of effort toward the overall design work or 30 percent completion of all of the design work (30 Percent Plans). Generally, 30 Percent Plans mark the end of the preliminary design phase. Plans reflecting 30, 60 and 90 percent levels of effort are customary in DBB processes, as these are the stages at which owners typically review design work. In 30 Percent Plans, some items are designed to 100 percent and other items are not designed at all. However, 30 Percent Plans provide reasonable assurance that the designed system is constructable. In essence, the Permit initially would be a conceptual permit for the entire SWTP coupled with a construction permit for those components for which the design is already complete on the 30 Percent Plans. Construction of each remaining component of the SWTP would await subsequent permit modifications authorizing construction of that component. As noted above, the May 18, 2000, cover letter anticipates another interim permit, or permit modification, covering specific components, and then the final permit, or permit modification, covering the entire SWTP. The DEP district office in Orlando has substantial experience with permitting DB water treatment projects. From 1996-98, the DEP Orlando office has permitted four such projects for the Orlando Utilities Commission and one such project for the City of Kissimmee. One of the Orlando Utilities Commission projects was to construct a completely new water treatment plant. Based on the experience of the DEP Orlando office, DB permitting, when based initially on 30 Percent Plans, shortens and simplifies the permitting process. DB permitting eliminates, or at least postpones, the presentation of elements, such as electrical and HVAC, that are irrelevant to the permitting process; the elimination of elements irrelevant to permitting from the initial designs helps the regulator find the elements that are relevant to the permitting process. Also, the experience of the DEP Orlando office is that the DB process results in no more permit modifications for change orders than are typical of a conventional DBB process. The DB-approval process used by the DEP Orlando office is modeled after the DEP-permitting process for wastewater treatment plants. DEP rules allow DB permitting of these plants, which are similar in construction to water treatment plants. In fact, DEP is preparing to adopt rules to allow DB permitting of water treatment plants. Because the DEP Orlando office did not issue variances from the rules that arguably preclude DB construction of water treatment plants, there is no precedent for the issuance of the variance sought in this case. However, the experience of the DEP Orlando office is that applicants do not present basic design changes after the initial submission, and DB permitting does not mean that regulatory objectives are sacrificed to the expediency sought by the applicant. The Present Case On April 11, 2000, Camp Dresser, on behalf of TBW, filed with the Health Department an Application for a Public Drinking Water Facility Construction Permit. The April 2000 drawings that accompanied the April 11, 2000, application are described above. The cover letter to the Health Department notes that, "upon conceptual approval of the project, individual components will be permitted through permit modifications based on submittals of complete drawings and specifications for each component." In this case, the availability of the Basis of Design meant that the 30 Percent Plans reflected more than a 30 percent level of effort or completion of the five-stage process of pretreatment, pH adjustment, ozone contactors, filtration, and storage in tanks. The engineer had already sized the facilities and defined all of the processes and elements of the SWTP. The April 2000 drawings, as supplemented by the Basis of Design, therefore presented a relatively detailed description of the scope, elements, and processes of the project. On May 18, 2000, Camp Dresser submitted to the Health Department more advanced drawings, which are dated May 18, 2000. The cover letter explains that the drawings are a complete set of Phase I drawings and specifications. The letter states that Camp Dresser intends to file complete drawings and specifications in three phases. Phase I, which is completed with the May 2000 drawings, consists of sitework, high rate flocculation and sedimentation, and ozone contact tanks. Phase II consists of biologically active granulated active carbon filters, clearwell, and gravity thickeners. Phase III consists of the remainder of the project. As of July 3, 2000, prior to the final hearing, the design for the SWTP had reached the 60 percent level of effort or completion. Although the SWTP described in the DBO Contract, Basis of Design, and May drawings is a relatively large, complex facility, it does not employ unproven technology. The standardization of design and regulatory review is facilitated by the use of the so-called Ten States' Standards, which are standards commonly used by the permitting authorities of numerous states, including Florida, to determine the capabilities of specified treatment processes in achieving specific water quality levels. Although the ACTIFLO technology is relatively new, it has been in use for at least five years. A pretreatment sedimentation barrier that reduces treatment time and thus tankage volume requirements, ACTIFLO is in use in a water treatment plant with a capacity of 60 MGD in Canada, which TBW's selection team members visited. ACTIFLO presently is being incorporated into a surface water treatment plant in Melbourne, Florida, where it must treat the nutrient-rich water of Lake Washington and the St. Johns River. The City of Tampa is adding ACTIFLO basins to its facilities. Also significant is the fact that ACTIFLO easily passed the pilot test on Lake Manatee. At present, 25 facilities using ACTIFLO are under design or construction in North America. As is consistent with the theory, the DBO process for designing, building, and operating the SWTP has demanded greater cooperation among the three entities that operate relatively independently in the DBB process. Pursuant to their obligations under the DBO Contract, Camp Dresser, Clark, and USFilter have coordinated, and likely will continue to coordinate, their efforts closely from design and construction, up to operation, to save time and money from the traditional DBB process, in which the design phase, construction phase, and operation phase are relatively independent of each other. The Variance In general, DEP has the authority to issue public drinking water treatment construction permits. The successful applicant obtains one permit--for construction and operation. There are no conceptual permits or separate operating permits. In Hillsborough County, as well as 10 other counties, DEP has delegated its responsibilities for issuing public drinking water treatment construction permits. In Hillsborough County, DEP has delegated this responsibility by an interagency agreement to the Health Department. Applying DEP rules to determine whether to issue a public drinking water construction permit, the Health Department defers to DEP for the issuance of variances from DEP rules. In typical permitting cases, the Health Department uses its own staff in processing the application and reaching a permitting decision. In a large case, such as this, the Health Department's lone professional engineer, who was hired in September 1999, can obtain considerable assistance from professional engineers within the Tampa Bay area and professional engineers employed by DEP. Perceiving a possible incompatibility between the DB process and the rules from which the variance is sought in this case, TBW initially filed a request for a variance with the Health Department. However, the Health Department declined to issue a variance to DEP rules and informed TBW that it had to file its request with DEP. Thus, on January 10, 2000, TBW filed a petition for a variance with DEP. On March 28, 2000, DEP issued a final order, pursuant to Section 120.542, Florida Statutes, granting the requested variance from Rule 62-555.520(4)(c) and (d), Florida Administrative Code (Variance). The Variance finds that the purpose of the underlying statutes would be met "because no component of the project would be permitted or constructed without review by the permitting authority of the complete plans and specifications for that portion of the project." The Variance finds that the DB approach will protect the public health, safety, and welfare in providing safe drinking water without exacerbating possible negative environmental impacts from the overuse of groundwater. The Variance relieves TBW of the necessity of complying with two subsections of the rule governing the contents of applications for a public drinking water construction permit. Rule 62-555.520(4)(c) and (d), Florida Administrative Code, provides: The permit application form sets forth the minimum information which is to be supplied to the Department or the Approved County Health Department. Additional information may be required by the Department to clarify information submitted in the permit application or to demonstrate that the proposed level of treatment will effectively treat the contaminants present in the raw water. The information required by the application is as follows: * * * Prints of drawings of the work project which contain sufficient detail to clearly apprise the Department of the work to be undertaken. All prints shall be minimum of 18 x 24 inches and a maximum size of 36 x 42 inches. The scale of details contained shall be satisfactory for microfilm reproduction. (Reduced size photographic reproduction of drawings for submission may be authorized.) Complete specifications of the project necessary to supplement the prints submitted. The issuance of the Variance by DEP has met with approval, albeit cautious approval, by the Health Department. One Health Department witness was an Engineer III, who is 19-year employee of the Health Department and supervisor of four Environmental Specialists charged with reviewing construction plans for drinking water plants. He testified that he agreed with DEP's final order granting the Variance. The Engineer III and the other Health Department witness, its professional engineer, testified that the issuance of the initial permit would not influence the Health Department in deciding whether to issue permit modifications, except to ensure compatibility. Allowing TBW not to comply with Rule 62-555.520(4)(c) and (d), Florida Administrative Code, the Variance provides that the initial permit shall not authorize the construction of any component of the SWTP; each component may be constructed only after the submission of complete plans and specifications for that component and the issuance of a permit modification based on those complete plans and specifications. The Variance also provides that the permitting authority shall publish a notice of intent to issue a permit modification "if the permitting authority believes that the modifications are of a controversial nature, or that there is heightened public awareness of the project." Save Our Bays and Canals, Inc. The Verified Amended Petition On May 1, 2000, Petitioner filed a petition challenging the Variance. On June 29, 2000, Petitioner filed an amended petition challenging the Variance, and the Administrative Law Judge granted Petitioner leave to file an amended petition on July 3, 2000. At the start of the hearing, on July 7, 2000, Petitioner filed a verified amended petition, which was identical to the amended petition, except that, on July 6, 2000, Petitioner's president had verified the pleading "to the best of [his] knowledge, information and belief." The verified amended petition states that Petitioner has over 400 members. The verified amended petition alleges that a substantial number of Petitioner's members will consume the finished water produced by the SWTP and will use the surface waters supplying the SWTP for recreation. The verified amended petition states that the purpose of Petitioner is to save the bays, canals, and waterways of the Tampa Bay area and to ensure safe drinking water for its members and residents of the Tampa Bay area. The verified amended petition states that the Variance affects Petitioner because it would allow the issuance of the Permit and construction of initial phases of the SWTP prior to submittal, review, and approval of complete plans for the next and subsequent phases. The verified amended petition alleges that Petitioner incorporated to pool its resources to review applications, so as to ensure safe drinking water. The verified amended petition states that submittal and review of a complete set of drawings and specifications is necessary prior to construction of the SWTP to ensure the ability of the facility to comply with state drinking water standards. The verified amended petition states that review of all individual components of the SWTP is necessary to assure the protection of the public health, safety, and welfare and the compliance with all applicable state and federal laws. Addressing specifically the 30 Percent Plans, the verified amended petition objects to the absence of a list of items to be included in the 30 Percent Plans. The verified amended petition alleges that this piecemeal approach to permitting will require Petitioner to request administrative hearings on each phase of permitting. The verified amended petition states that the Variance may have adverse environmental and safety impacts that cannot be evaluated fully without a submittal and review of the complete drawings and specifications. The verified amended petition states that the DBO approach is "self-created." The verified amended petition objects to the failure of TBW to obtain the Variance before issuing the RFP and instead using the DBO Contract as a basis for claiming hardship so as to qualify for the Variance. The verified amended petition states that the number of variances issued for similar 30 Percent Plans threatens to create a situation in which the variance subsumes the rule requiring complete drawings and specifications. The verified amended petition objects to this form of unwritten policy that has not been published as a rule. The verified amended petition states that the phased permitting of the SWTP may create permitting momentum that discourages a rigorous application of the rules at a later stage. The verified amended petition states that the request for a variance is improper because it is for a variance from statutes, not rules. The verified amended petition states that Section 403.861(10), Florida Statutes, requires DEP or Health Department approval of "complete plans and specifications prior to the installation, operation, alteration, or extension of any public water system." The verified amended petition states that "installation" means construction. The verified amended petition states that Section 403.861(5), Florida Statutes, prohibits the issuance of a public drinking water treatment construction permit "until the water system has been determined to have the required capabilities . . .." The verified amended petition states that the assurances of USFilter are insufficient to satisfy this requirement. The verified amended petition states that Section 120.542, Florida Statutes, which authorizes the variance procedure used in this case, does not authorize variances for compliance with federal law. The verified amended petition states that TBW must obtain a federal variance in order to obtain the Variance. The verified amended petition states that the 30 Percent Plans omit information required for permitting, such as the listing of a certified operator, monitoring and recordkeeping programs, and various financial elements, such as the posting of a bond and creation of reserves to demonstrate financial soundness. The verified amended petition states that TBW's substantial hardship is based on contract deadlines that are entirely self-created and, thus, insufficient to warrant a variance. The verified amended petition notes that the environmental damage cited as a basis for granting the Variance "was caused by years of overpumping by . . . TBW . . .." Also, the verified amended petition states that member governments of TBW continue to approve new development, which increases the demand for drinking water, because TBW and its member governments have failed to exploit fully the potential for conservation and reclaimed water. Similarly, the verified amended petition states that SWFWMD helped create the hardship by renewing the permits for additional withdrawals from the 11 Wellfields. The verified amended petition states that the DBO process will not necessarily save time and money and is not a recognized exception to the general requirement that an applicant must submit complete drawings and specifications prior to permitting. The verified amended petition states that 30 Percent Plans do not provide sufficient detail to know what the contractor is promising to build, and it would be faster to correct any mistakes prior to the start of construction, rather than after the start of construction. Standing Petitioner was an unincorporated association from its formation in early October 1999 through February 3, 2000, when it was incorporated as a Florida not-for-profit corporation. Originally named Save Our Bays and Canals Association, the unincorporated association was formed by members of the Apollo Beach Civic Association who were concerned about the environmental impact upon their bays and canals of intensive utility and industrial land uses in close proximity to their homes. Apollo Beach is an unincorporated area along the southeast shore of Tampa Bay, just south of the mouth of the Alafia River. The land uses with which the unincorporated association has been concerned in its brief existence include a sulfur plant, the TECO Big Bend plant, a proposed National Gypsum plant, a proposed concrete plant, the proposed Desal Plant, and, now the proposed SWTP. The Apollo Beach area is very close to the proposed site of the Desal Plant, but is about 17 miles south southeast from the proposed site of the SWTP. Petitioner and its members are primarily concerned with the Desal Plant, not the SWTP. However, Petitioner and its members express concern with the SWTP. The concerns are that DB permitting of the SWTP will jeopardize the production of safe drinking water and will result in greater costs to TBW customers, who will eventually bear the financial burden of costly reworking of a hastily designed and constructed project. Standing analysis is simplified by the elimination of the issue of whether the verification of the amended petition confers standing. The claims of Petitioner in this case do not rise to the level of an attempt to prevent an activity, conduct, or product to be permitted from impairing, polluting, or otherwise injuring the air, water, or other natural resources of the State. First, finished drinking water is not a natural resource of the State. Although a resource, finished drinking water is not natural. Although of lower water quality, raw water is a natural resource. The potable water leaving the SWTP is a manufactured resource. Second, even if finished drinking water were a natural resource, the issuance of the Variance does not have the effect of impairing, polluting, or otherwise injuring a natural resource. The Variance excuses compliance with two rules requiring complete drawings and specifications. Even assuming that the SWTP would impair, pollute, or otherwise injure natural resources, the Variance would not have such an effect because the act of granting the Variance is distinct from the act of granting the Permit itself. Thus, facts regarding the circumstances under which Petitioner's president verified the amended petition are irrelevant for the purpose of determining standing. Petitioner's standing is a function of the characteristics of the corporation and its members. At the corporate level, the articles of incorporation state that the "specific and primary purposes for which this corporation is formed are to operate for the public education and advancement of the water quality of Tampa Bay, its tributaries, its estuaries and its canals and for other charitable purposes, by the distribution of its funds for such purposes." There is some indication in the record of an attempt, after filing the petition commencing this proceeding, to amend the articles of incorporation to state, among Petitioner's purposes, the protection of drinking water. The record does not contain the written articles of incorporation, as amended, or amended articles of incorporation after February 3, 2000. However, for the purpose of this recommended order, the Administrative Law Judge shall assume that such an amendment was made at some point after the filing of the petition and before the final hearing. At the membership level, the water to be produced by the SWTP will be distributed primarily to customers in Pasco and Pinellas counties, St. Petersburg, and the Northwest Service Area of Hillsborough County, not to Apollo Beach, which is in southern Hillsborough County. Nearly all of Petitioner's members reside in Apollo Beach or other nearby communities, which also will not be served by the SWTP. Although an insubstantial number of Petitioner's members will consume finished water from the SWTP in their homes, a substantial number will consume finished water from the SWTP at their places of work or schools and where they shop or dine out. Drinking water is ubiquitous, and the mixture of functional land uses in Apollo Beach is not, so it is highly probable that members of Petitioner will travel the three-county area in connection with their employment, education, and recreation. Close analysis of the characteristics of Petitioner and its members reveals no basis for finding standing to challenge the Variance. Nothing in the record suggests that Petitioner or any of its members have devoted themselves to the arcane task of resisting a perceived trend of state and local agencies to issue series of permits in response to DB proposals--or, more colorfully, to engage in "piecemeal permitting." About the only interest that Petitioner can legitimately claim in DB permitting is that multiple points of entry, at each permit and permit modification, will result in additional expense. If Petitioner has standing to contest even the permitting of the SWTP, Petitioner must petition each time for an administrative hearing, conduct discovery, and participate in the final hearing. However, this seems, at most, like a tenuous interest, which suffers also from the speculation that later stages of the DB permitting process will continue to present new issues not raised in the challenge of the Permit initially approved. Turning to the members themselves, their consumption of drinking water produced by the SWTP is no basis for standing either because the attenuated relationship between the Variance, which excuses compliance with two rules concerning the contents of applications, and the safety of drinking water or the additional costs that could arise from hasty designing, constructing, or permitting. Although it is conceivable that a record could have been made that the DB permitting proposed in this case would likely result in incomplete, incompetent permitting review, so as to jeopardize the public health if the permit were to issue, the record in this case does not support such a contention. To the contrary, the record establishes that the DB permitting is at least as likely as DBB permitting to provide the regulatory oversight necessary to assure the design and construction of a successful public drinking water treatment plant Lacking a substantial nexus in the record between the DB permitting authorized by the Variance and the quality of the drinking water that, if the Health Department issues the Permit, would likely be produced by the SWTP and likelihood of success of the overall construction project, the members of Petitioner likewise lack standing to challenge the Variance. Ultimate Findings of Fact Petitioner and its members lack standing to challenge the Variance. TBW faces a substantial hardship if not given the Variance. The legal and financial consequences of a failure to meet the phased-in withdrawal reductions are real and substantial. The environmental damage caused by overpumping the 11 Wellfields underscores the urgency of developing alternative sources of raw water for production into finished drinking water. The rule from which TBW seeks the Variance is derived from the statute discussed in the Conclusions of Law. The underlying purpose of this statute is the protection of the public health, safety, and welfare. The Variance serves the underlying purposes in two respects. First, the 30 Percent Plans contain sufficient detail to allow permitting to proceed without jeopardizing the objective of the rules to ensure that the USFilter team designs and constructs a water treatment plant that is in full compliance with all federal and state law. Second, the Variance provides that the USFilter team shall construct no component of the SWTP until it has been permitted, either initially or by a permit modification. Petitioner's Liability for Attorneys' Fees and Costs Petitioner has a Technical Committee on which Petitioner relies for examination of technical aspects of matters that are of general concern to Petitioner. This committee obtained a copy of the Variance and, after examination and discussion, developed a position in opposition to DEP's stated intent to grant the Variance. The Chair of Petitioner's Technical Committee, who has a bachelor of science degree in chemistry and is an industrial hygienist, drafted a letter reflecting the opinion of the committee in opposition to the Variance. Petitioner's attorney then converted this letter into the petition that commenced this proceeding. At all times, the Board of Directors of Petitioner approved the actions of the Technical Committee and Petitioner's attorney, including the filing of the petition. When Petitioner's president verified the amended petition, he reasonably relied on the advice of counsel concerning the substance of the assertions, and the advice of counsel was based on the work of the Technical Committee. Petitioner's president also reasonably relied on the work of the Technical Committee when he verified the amended petition. Although DB permitting has been available for the design and construction of wastewater treatment plants for an undetermined period of time, DB permitting for the design and construction of public drinking water plants is a new concept. The concept is so new that the DEP Orlando office mistakenly issued at least 2 DB permits for public drinking water plants without requiring the applicant to obtain a variance from the two rules that prevent DB permitting for such facilities. The concept is so new that the key Health Department employees have expressed concern over personnel demands from this new means of permitting, although they have also expressed at least lukewarm support for the Variance. The record portrays the employees of the Health Department as hard-working and competent, but over-burdened. The DB permitting obviously places significant responsibilities upon the Health Department, especially as it familiarizes itself with DP permitting. Although the availability of professional support from other sources, including DEP, ultimately resolves this issue, the situation of the Health Department also is relevant in assessing Petitioner's liability for attorneys' fees and costs. Two or three aspects of the drawings were deficient, according to Petitioner's professional engineer, whose testimony has been admitted despite the unreasonably restricted opportunity presented for cross-examination by his contractually driven refusal to identify past clients or jobs. Although none of these items seems likely to jeopardize a successful construction project, these were design points on which well-informed professionals could reasonably differ. Although the issue of "improper purpose" presents a closer question than the substantive issues discussed above, there is inadequate subjective or objective evidence in the record supporting TBW's claim for attorneys' fees and costs on this ground. Ultimately, the novelty of DB permitting of drinking water treatment plants precludes a finding of improper purpose. All available facts drive this determination, and, at this point in time, the relative uniqueness of DB permitting of drinking water treatment plants to DEP, the Health Department, and Petitioner and its members provides the necessary margin to preclude a finding of improper purpose.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Variance and denying the request of Tampa Bay Water for attorneys' fees and costs. DONE AND ENTERED this 24th day of July, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2000. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Ralf G. Brookes, Attorney 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761 J. Frazier Carraway Thomas A. Lash Salem, Saxon & Nielson, P.A. 101 East Kennedy Boulevard Suite 3200 Tampa, Florida 33601 Cynthia K. Christen Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky General Counsel Jack R. Pepper, Jr. Associate General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
