Findings Of Fact Application No. 76-00254 seeks a consumptive use water permit for 1.08 million gallons per day average daily withdrawal and 2.16 million gallons per day maximum daily withdrawal from one well. This is a new use. The purpose of the consumptive use is a semi-enclosed irrigation system for the irrigation of tomatoes in south Hillsborough County. The water is to be taken from the Floridan Aquifer with some discharge off site. According to Barbara Boatwright, hydrologist for the district, there is some possibility that salt water intrusion may occur, but the district has never documented it in the subject area. The consumptive use will exceed the water crop as defined by the district because 25 percent of the water used will run off site and thus be lost. Except as otherwise stated above, none of the conditions set forth in Subsection 16J-2.11(2),(3) or (4), F.A.C., will be violated. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: By January 1, 1978, applicant shall reduce runoff to 8.6 percent of the amount pumped, which reduction will bring the amount pumped within the water crop as defined by the district. That the applicant analyze the quality of the water at the beginning and end of each production season and that these analyses be submitted to the district. That the district be allowed to install flowmeters on any discharge canal and on the pump with proper notification of applicant and to enter on property to read the meters.
Recommendation Noting that, with the conditions requested by the Southwest Florida Water Management District's staff, issuance of the sought for permit appears consistent with the public interest, it is RECOMMENDED that a consumptive use permit be issued pursuant to Application No. 75-00254 with the conditions set forth in paragraph 4. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Terry Elsberry Staff Attorney Elsberry Brothers, Inc. Southwest Florida Water Route 2, Box 70 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact By application No. 2-7738 filed on June 29, 1981, Aquarina has requested a withdrawal for consumptive use of ground water in Brevard County in the amount of 468,000 gallons per day (850,000 gallons per day maximum) of raw water (before processing). The purpose of the proposed consumptive water use is a proposed development of 196+- acres in Brevard County located between Mullet Creek, a tributary of the Indian River and the Atlantic Ocean in South Brevard County. It is located on the barrier islands separated from the mainland by the Indian River, and is 13 miles south of Melbourne and 5 miles north of Indian River County. Aquarina proposes to develop a condominium community with a projected population of 3,500 persons consisting of 1,600 residences, a commercial area, and 500 hotel rooms. An on-site well field is proposed as well as reverse osmosis water treatment and wastewater treatment plants which are to be constructed near the southern boundary of the development. Two wells with a capacity of approximately 500 gallons per minute are proposed to be constructed and both will withdraw water from the Floridian Aquifer for conversion by reverse osmosis treatment into potable water. 3/ In addition to potable water supply requirements for the development, although part of the requirement will be met by wastewater, there is a requirement for irrigation water for landscaping. The Aquarina site has been zoned Planned Unit Development (PUD) since 1973 and the proposed densities are in accordance with those established in the Brevard County Comprehensive Plan and Zoning Ordinance. As a result of an earlier application of Aquarina for consumptive use, a temporary water use permit was granted by the District to allow Aquarina to drill test wells for aquifer testing before the present application for water use would be considered by the District. This earlier application is not now at issue. Pursuant to this temporary permit, Aquarina conducted an aquifer test program. During the first test, well #1 (the northernmost well) was utilized as a monitor or observation well for the test conducted on well #2, and an existing mosquito control well was also used as an observation well. A two-step pump test was run for 24 hours, with drawdown readings recorded at all three wells. The pump test analysis showed that the Floridian Aquifer transmissivity (the measure of the ability of the aquifer to transmit water) ranged from 173,000 gallons per day per foot at the observation wells to 87,000 gallons per day per foot at the discharge well. The total depth of these two wells was #1 -- 425 feet and #2 -- 412 feet. Following submission of the results of the first aquifer test and the application for consumptive use filed on June 29, 1981, the District staff prepared a Technical Staff Report (TSR) for the benefit of the District Governing Board based upon the two wells drilled pursuant to the temporary permit. However, because the proposed withdrawals would be from the Sebastian Inlet fresh water lens which is a finite potable source of water rapidly being depleted by existing domestic uses and mosquito control wells, the TSR recommended, among other things, that the two wells be deepened to a depth below the Sebastian Inlet fresh water lens and cased to the depth of 450 feet to insure that withdrawals occur from expected saltier water below the lens. Also, the District staff recommended that three mosquito control wells on the Aquarina property be properly plugged to eliminate fresh water loss from the lens due to the following wells. The three flowing mosquito control wells on the site were estimated to have been flowing at 432,000 gallons per day. The Sebastian Inlet fresh water lens from which Aquarina initially intended to withdraw its water appears as two underground bubbles or lenses of water fresher than the surrounding connate or saltier water. The lenses apparently are a result of stratigraphic entrapment of fresh water due to geological formations and are not being recharged with fresh water. When withdrawals are made from these lenses, salty or connate-water fills the void left by the fresher water following withdrawal. The two lenses were substantially larger during recent times but, because of many domestic uses as well as mosquito control wells which have been flowing freely, the reservoirs have shrunk significantly. Based upon present usage, the north portion of the lens will last until approximately the year 2000 at current rates of consumption and the south portion of the lens will last until approximately the year 2030 at current rates of consumption. Because of the impact on the Sebastian Inlet lens, the staff of the District could not recommend approval of Aquarina's application unless Aquarina agreed to three main conditions: The Applicant would case its production wells to 450 feet below the surface, to avoid interference with the freshwater reservoir. (Because of the combined factors of upward artesian pressure in the aquifer, the greater density of salt or connate water in relation to fresh- water, and the known range of transmis- sivity and storage factors for that portion of the aquifer [an underground waterbearing stratum or group of strata] in that geographical area, connate water would flow upward and from the sides into the area of the Applicant's withdrawal of water from beneath the lens, and the lighter, fresh water of the lens above would remain there, free from interfer- ence by the withdrawal.) The Applicant would have to plug all the preexisting mosquito control wells on the development site. The Applicant would have to undergo early monitoring of the chemical quality of this water and the water within the fresh water reservoir. As a result of Aquarina's agreement to meet these three conditions, the Technical Staff Report (TSR) issued by the District on August 20, 1981, recommended approval of the application with the addition of the above conditions. During the course of (1) deepening of well #2 to a depth of 650 feet and backplugging to 595 feet; (2) casing it to a depth of 450 feet; (3) performing a second aquifer test on the deeper well; and (4) evaluating the proposed withdrawals, Aquarina's consultants came to the following conclusions which were unrebutted by other evidence submitted at the final hearing: During the process of deepening well #2 to 650 feet, later backplugged to 595 feet, the consultants discovered an aquitard or confining layer made up of small clay-sized particles which retard the vertical flow of water at a depth of 440 to 450 feet. This well was cased to a depth of 450 feet or to the top of the aquitard. Before reaching this layer, the quality of water was generally declining with increasing depths. Below this layer, the quality of water improved to a depth of approximately 550 feet and the transmissivity was greater below the aquitard than above. Further, that same aquitard was also discovered in a mosquito control well on site when it was logged. Sufficient quantities of treatable water are available from the deepened well to supply the needs of the Aquarina project. That in both the June, 1991, and the subsequent aquifer test, there appeared to be interferences from other sources which impact the potentiometric pressure levels of the wells on the Aquarina site. These were identified as the South Brevard Utilities Corporation (SBUC) and nearby domestic well users. That the results of the June, 1981, test and computer modeling were that the impact of the proposed Aquarina with- drawls on existing nearby wells drilled to the shallower level was between a one to two foot decline in the potentiometric pressure. The average potentiometric pressure in the local aquifer is 27 feet above National Vertical Geodetic Datum (NVGD) or Mean Sea Level (MSL). These existing nearby wells were identified to be the SBUC well approximately 2,400 feet away from Aquarina and those wells of nearby homeowners in the same vicinity as the SBUC well. That flownet analysis (EPA computer model) of the results of the second aquifer test program revealed that approximately 6% of the water obtained from the deepened well would come from the layers above the aquitard, i.e. connate water and the Sebastian Inlet fresh water lens. Based on this model, the effect on water quality for existing users of the proposed withdrawals was concluded to be insignificant and known existing users would not be harmed by the proposed withdrawals. The aquitard was observed in the Aquarina deepened well and the observation mosquito control well which was logged. It was impossible to state definitely that the observed aquitard in the area was a continuous geologic feature. Partly due to the proximity of the aquitard and the depth of the wells in relation to the Sebastian Inlet fresh water lens, the conclusion was reached that effect on water quality of the Aquarina withdrawals would be insignificant. There is no fresh water recharge into the Sebastian Inlet fresh water lens, but there is a continuous pressure con- nection throughout the Florida aquifer in the area. Any replacement of water discharged from the Sebastian Inlet fresh water lens or the lower zones will be of saltier, less potable connate water. It is not understood how long the part of the aquifer below the aquitard (lower zone) will continue to be a significant source of fresh water due to insufficient data. The three mosquito control wells on the Aquarina site are flowing when uncapped or unplugged an estimated 432,000 gallons per day while the wells in the northern sector of the Sebastian Inlet fresh water lens (below where Aquarina is located) flowed at an approximate rate of 2.6 MGD. These withdrawals by the mosquito control wells are primarily from the Sebastian Inlet fresh water lens and are the major cause of premature depletion of the lens. The testimony and the data presented at the hearing demonstrated that the Applicant has met its burden to show by a preponderance of the evidence that the proposed withdrawals by Aquarina will not significantly affect either the quality or quantity of water available to neighboring water users. This appears to be the case regardless of whether the aquitard testified to be about ten feet thick exists and whether the leakance value of less that 6% exists in the aquifer between the point of the Aquarina withdrawals and neighboring users. Data which may be generated subsequently may lead to a different conclusion, but this finding is based on the data presented to the Hearing Officer by the parties at the hearing. 4/ Aquarina has agreed to the following permit condition: (b) The applicant would have to plug all the preexisting mosquito control wells on the development site. The proper plugging of the mosquito control wells on the Aquarina site will save approximately 432.000 GPD of water from the finite Sebastian Inlet lens. This condition was agreed to independently of the contribution by Aquarina of $25,000 to the well plugging program with the District and Brevard County which has as its goal, the plugging of all mosquito control wells in the area. Without the plugging of the mosquito control wells, it is estimated that the northern reservoir of the lens would be depleted by the year 2000, and the southern reservoir by the year 2030. It was also estimated that the plugging of the mosquito control wells would prolong the life of the fresh water reservoirs by over 100 years. Furthermore, by plugging all the mosquito control wells, approximately 6,700,000 gallons per day will be saved from the entire lens area. The basin in which Aquarina is located is in an overdraft condition with more water withdrawn than is presently being recharged. However, the Aquarina project will bring about a net improvement in the situation due to the mosquito control well plugging program imposed as a condition of the permit. Under the sites current PUD zoning, a density of 12 dwelling units per acre is permitted. The current classification of the property in the Brevard County Comprehensive Plan is "urbanizing." Under that classification, the Applicant could seek a rezoning of the property from PUD to single family attached residential. Such a reclassification would avoid the requirements of Chapter 373, Florida Statutes, by allowing each of the 196+- dwelling units to have its own well with a per unit consumptive use below the quantity required to activate Chapter 373, Florida Statutes. Nothing would prevent any of the residential wells from tapping the fresh water lens presently used by the Petitioners in a total amount exceeding that sought in the instant application. Given the designated land use of the Aquarina site, the controlled withdrawal from one or two points within the development is a preferable alternative to the unregulated development and water use which in all probability would follow from the denial of this permit. In large measure, the District's options regarding this site and its attendant consequences have been predetermined by land use decisions made by local officials. Under these circumstances, the District has been required to choose among a set of options which do not include an option for controlled and limited growth directly tied to availability of fresh water resources envisioned by the Petitioner. The choice which the District made in this case, although obviously not ideal, is the best among the presently available alternatives.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent St. Johns River Water Management District grant the requested consumptive water use permit to the Applicant Aquarina Developments, Inc., subject to the conditions contained in the staff's TSR, as corrected and amended on March 25, 1982, which include, but are not limited to: The maximum daily withdrawal shall not exceed 9.765 million gallons per day for five years. The maximum annual withdrawal shall not exceed 171 million gallons for five years. The existing ten inch public supply wells shall be lined or cased to a depth of 450 feet below land surface to insure with- drawals from below this depth. The construction standards used to perform these well modifications shall be accomplished through all appropriate permitting regulations and conform to existing construc- tion standards as stated in Chapter 373, Florida Statutes (F.S.) and Chapter 40C-3, Florida Administrative Code (F.A.C.). That any subsequent Public Supply well or wells constructed for this project be cased to an equal depth. That all mosquito control wells (3) within the property boundaries of the permittee be plugged with neat cement grout from bottom to top as specified in Chapter 40C-3, F.A.C. Chloride concentrations and dissolved solids in water samples from each water supply well shall be measured monthly, and results shall be submitted within 60 days of measure- ment to the St. Johns River Water Management District. A complete water quality analysis including Ca, Mg, Na, K, Cl, S04, HC03, pH and Co3 shall be performed on samples collected in May of each year. The permittee shall maintain withdrawal records showing daily withdrawals of raw (pre-treatment) water for each year ending May 31. These records shall be submitted on a quarterly basis on District Form En-3. Nothing in this permit shall be construed to limit the authority of the St. Johns River Water management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or formulate a plan for implementation during periods of water shortage pursuant to Section 373.246, Florida Statutes. District representatives may visit the site to insure compliance with conditions of this permit following advance notifica- tion of the permittee of the time of visit. The water conserving techniques and methods as outlined in the July 30, 1981 letter to the District from Ed Fleis, P.E., to Thomas K. Ziegler, TSR Exhibit 10, shall be implemented and included throughout all phases of this project. Further, should the replace- ment of any fixtures or appliances be required during the life of this permit, water conserving fixtures equivalent to those originally specified shall be installed. DONE AND ORDERED this 6th day of August, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue The issue in this case is whether the Southwest Florida Water Management District (the District) should grant the application of the Misty Creek Country Club, Inc. (the Club), to modify MSSW Permit No. 400037.
Findings Of Fact Background Petitioners are owners of property adjacent to Lake No. 7 of the Misty Creek Country Club in a development called The Preserves at Misty Creek-- specifically, lot 113 (Robert and Lee Werner), lot 114 (Charles and Rosemary Biondolillo), lots 115 and 115A (Ignatius and Judith Bertola), lots 117 and 117A (Don and Halina Bogdanske), lots 118 and 118A (Louis and Betty Mitchell), lots 119 and 119A (George and Dorothy Holly), lots 120 and 120A (John and Maureen Higgins), and lot 121 (William and June Spence). Respondent, the Misty Creek Country Club (the Club), operates a golf course and country club located at The Preserves at Misty Creek under a 99-year lease with Gator Creek Lands, the developer of The Preserves at Misty Creek. Existing System Design and Application for Permit Modification In 1985, Respondent Southwest Florida Water Management District, issued a surface water management permit for development of a 730-acre residential development and golf course. The District subsequently issued to the Club operation phase authorization for the surface water management system associated with the golf course portion of the development in March of 1992. Under the original permit, Lake No. 7 was part of the overall stormwater management system for the golf course. The lake is approximately seven and half to eight acres in size and is part of a total drainage basin of approximately twenty-eight acres. As originally designed, Lake No. 7 is a detention with filtration system. An underdrain in the side of the bank provides water quality treatment, filtering out oils and greases, fertilizers and other contaminants. A control elevation of 31.02 was established for Lake No. 7 through construction of a weir. Between elevation 31.00 and 31.02, water discharges through the underdrain system providing water quality treatment. Above elevation 31.02, water flows over the control structure into Lake No. 6, and ultimately discharges to Cow Pen Slough, which is Class III waters of the state. The Club presently has a water use permit from the District which allows withdrawal of groundwater for irrigation of the golf course. Groundwater is stored in Lake No. 7 prior to use for irrigation when needed to augment water in the lake. Special Condition Number 2 of the water use permit required the Club to investigate the feasibility of using reclaimed or reuse water in lieu of groundwater for irrigation purposes at the golf course. As a result of the investigation required by Special Condition Number 2 of the water use permit, the Club filed an application with the District to modify its surface water management permit to allow for the introduction of reuse water into Lake No. 7. Under that application, there would have been no significant modifications to the stormwater management system. Reuse water would have replaced groundwater as a source for augmenting water in the lake when needed for irrigation. An eight-inch service line would convey the reuse water to Lake 7, and a float valve would control the introduction of reuse water into Lake No. 7. When water levels in the lake fell below elevation 30.5', the float valve would open the effluent line to allow introduction of reuse water into the lake; when the water elevation in the lake reached 31.0', the float valve would shut off the flow of water. There would be gate valves on either side of the structure that could be manually closed, if necessary, to stop the flow of reuse water into the lake if the float valve malfunctioned. Club personnel would have access to the gate valves and could manually stop the flow of reuse water into the lake if necessary. On August 9, 1995, just days prior to the final hearing in this matter, the Club proposed to modify its application to make certain structural changes in the design of the surface water management system. Specifically, the Club proposed to plug the window in the weir, raise the elevation of the weir or control structure to elevation 33.6, raise the elevation of the berm along the north end of Lake No. 7 adjacent to the weir to elevation 33.6, and plug the underdrain. The purpose of the proposed modifications to the design of the system was to assure that no discharge from Lake No. 7 would occur up to and including the 100-year storm event. A 100-year storm event is equal to 10 inches of rainfall in a 24-hour period. Source and Quality of Reuse Water The Club also entered into an agreement with Sarasota County to accept reuse water from the county's new Bee Ridge wastewater treatment facility. That agreement specifies the terms under which the Club will accept reuse water from the County. The County's Bee Ridge facility is presently under construction and is not yet operating. As permitted by the Department of Environmental Protection, the Bee Ridge wastewater treatment facility will use a Bardenpho waste treatment system which is a licensed process to provide advanced waste treatment. The construction permit establishes effluent limits for the facility that are comparable to a level of treatment known as advanced secondary treatment, but the County Commission for Sarasota County has instructed the County staff to operate the Bee Ridge facility as an advanced waste treatment plant. Advanced waste treatment is defined by the quality of the effluent produced. For advanced waste treatment, the effluent may not exceed 5 milligrams/Liter of biochemical oxygen demand (BOD) or total suspended solids (TSS), 3 milligrams/Liter of total nitrogen, or 1 milligram/Liter of total phosphorus. It also requires high level disinfection. Advanced secondary treatment requires the same level of treatment for TSS but the limit for nitrates is 10 milligrams/Liter. High level disinfection is also required for advanced secondary treatment. In Florida, reuse systems require a minimum of advanced secondary treatment. High level disinfection is the level of treatment that generally is accepted as being a reasonable level of treatment. The Bee Ridge permit issued to Sarasota County identifies the Club as one of the recipients of reuse water for irrigation. Condition Number 21 of that permit provides that the use of golf course ponds to store reuse water is not authorized under the County's permit until issuance of a separate permit or modification of the County's permit. Although the District did not require Misty Creek to submit any information about the modification of the County's permit, there was no basis for assuming that the County permit could not be modified. To the contrary, the permit provides that authorization may be obtained by permit modification. Under the late modification to the Club's application, the reuse water transmission line and float valve system, with backup manual gate valve system, is unchanged. So are the water elevations at which the float valve system will automatically introduce reuse water into Lake 7 and shut off. Sarasota County already has constructed the water transmission system that would deliver reuse water to the Club. At the request of the District, the Club provided copies of the drawings of the float valve structure as permitted by the Department of Environmental Protection. The District did not require certified drawings of that structure. But the District will require the Club to provide as-built drawings following completion of construction prior to the introduction of reuse water into Lake No. 7. Property Ownership Each of the Petitioners owns a residential lot adjacent to Lake No. 7. At the time of the Petitioners' purchase of the individual residential lots, the Club leased certain property immediately west of Lake No. 7 from the developer of The Preserve at Misty Creek. The leased premises included a piece of land extending into the lake known as the 19th green. As a result of negotiations between the Club and the developer, it was determined that the 19th green would be removed and the land between the approximate top of bank of Lake No. 7 and the private residential lots would be released from the Club's lease. The developer subsequently conveyed the property that had been released from the Club's lease to the individual lot owners (the "A" parcels listed in Finding 1). At the time of the conveyance of the additional parcels, the attorney for the developer prepared deeds for each individual parcel with a metes and bounds description off the rear of the residential lots to which they were being added. While the Club's application for modification of its surface water management permit was being processed by the District, counsel for Petitioners provided the District with copies of the individual deeds and questioned whether the Club had ownership or control of the land which was the subject of the application sufficient to meet the District's permitting requirements. In response to a request for information regarding the ownership of the property that was the subject of the application, the Club submitted to the District a topographical survey prepared by Mr. Steven Burkholder, a registered professional land surveyor with AM Engineering. The topographical survey depicted: the elevation of the water in the Lake No. 7 on the day that the survey was conducted, labeled "approximate water's edge"; the elevation of the "top of bank"; and the easternmost line of private ownership by Petitioners. Mr. Burkholder determined the line of private property ownership by reproducing a boundary survey attached to the individual deeds conveying the additional parcels to the Petitioners. He testified that he was confident that the topographical survey he prepared accurately represented the most easterly boundary of the Petitioners' ownership. The elevation of the line of private ownership as depicted on the survey prepared by Mr. Burkholder ranges from a low of approximately 34.5 to 35.2. The elevation of the line labeled "top of bank" ranges from a high of 35.6 to a low of 34.4. The elevation of the water in Lake No. 7 would be controlled by the elevation of the modified control structure which is proposed to be set at elevation 33.6. After modification of the surface water management system to retain the 100-year storm event, at no time would water levels in the lake rise above the existing elevation of the "top of bank." The Petitioners testified that they believed that they owned to the water's edge or edge of the lake, but Mr. Burkholder testified that a property boundary could not be determined based on an elevation depicting the water's edge because that line would change as the level of the water rose and fell. The Petitioners also presented evidence that the developer's attorney made representations to them that their ownership extended to the "approximate high water line." But there appears to be no such thing as an "approximate high water line" in surveying terms. Where the boundary of a lake is depicted on a survey it generally is depicted from top of bank to top of bank. In any event, the legal descriptions of the parcels conveyed to the Petitioners were not based on a reference to either a water line or the water's edge or the lake at all. Instead, the legal descriptions were based solely on a metes and bounds description off the rear of the residential lots. Notwithstanding some contrary evidence, if the Petitioners owned to the water's edge, such ownership would require the Petitioners to consent to or join in the amended application for the modification of the Club's surface water management permit. Information regarding the ownership or control and the legal availability of the receiving water system is required as part of the contents of an application under Rule 40D-4.101(2)(d)6. and 7., Florida Administrative Code. The amended application requires the ability to "spread" Lake 7 in the direction of the Petitioners' property. If the Petitioners own the property on which the Club intends to "spread" Lake 7 in order to make the amended application work, the Petitioners must consent or join. The issue of the legal ownership and control of the Petitioners and the Club currently is in litigation in state circuit court. If the state circuit court determines that the easterly boundary of the "A" parcels lies to the east of the "top of bank," consideration would have to be given to modifying any permit issued to the Club to insure that the designed "spread" of Lake 7 in a storm event up to and including a 100-year storm event does not encroach on the Petitioners' property. District Permit Requirements The District has never before processed an application for a surface water management permit allowing commingling of storm water and reuse water. The District applied Chapter 40D-4, Florida Administrative Code, in reviewing the Club's permit application. There are no specific provisions in Rule 40D-4 or the District's Basis of Review for Surface Water Management Permit Applications that address the commingling of stormwater and reuse water; on the other hand, no rules of the District prohibit the introduction of other types of water into a stormwater treatment pond so long as the requirements of Rule 40D-4 are met. The District has the authority to allow stormwater and reuse water to be commingled. Section 40D-4.301, Florida Administrative Code, contains the conditions for issuance of a surface water management permit. Permitting Criteria In order to obtain a surface water management permit to commingle stormwater and reuse water in Lake 7, the Club must provide reasonable assurances that the proposed modifications to its existing system will provide adequate flood control and drainage; not cause adverse water quality and quantity impacts on receiving waters and adjacent lands; not result in a violation of surface water quality standards; not cause adverse impacts on surface and groundwater levels and flows; not diminish the capability of the lake to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code; not cause adverse environmental impacts to wetlands, fish and wildlife or other natural resources; be effectively operated and maintained; not adversely affect public health and safety; be consistent with other public agency's requirements; not otherwise be harmful to water resources of the District; and not be against public policy. No surface or groundwater levels or flows have been set for this area of the District, so that permit criterion is not applicable to the Club's application. The Club's application will not impact wetlands or fish and wildlife associated with wetlands as described in F.A.C. Rule 40D-4.301(1)(f). There are no wetlands regulated by the District in the project site. The Club has submitted to the District an operation and maintenance plan for the modified surface water management system. The operation and maintenance plan is in compliance with the District's permitting criteria contained in Rule 40D-4.301(1)(g). The District's regulation with respect to the requirement that a project not adversely affect the public health and safety is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The permitting criterion that a project must be consistent with the requirements of other public agencies was met by inclusion in the permit of Special Conditions Nos. 5 and 6, Limiting Condition No. 3 and Standard Condition No. 3, which require that the surface water management permit be modified if necessary to comply with modifications imposed by other public agencies. The District's regulation with respect to the requirement that a project not otherwise be harmful to the water resources within the District is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with this criterion. The District's regulation with respect to the requirement that a project may not be against public policy is based on the specific requirements of Chapter 40D-4, Florida Administrative Code, and the Club has complied with that criterion. The project will not have an adverse impact on water quality or quantity in receiving waters or adjacent lands. Under the District's regulations, the project would not be permittable if it caused flooding on property owned by other persons. Two concerns regarding off-site flooding were raised by Petitioners: first, the potential for flooding of the Petitioners' property; and, second, the potential for flooding of secondary systems connecting to Lake No. 7 such as private roads in the development. The project would violate the requirements of Section 40D-4.301(1)(a), Florida Administrative Code, which requires that a proposed project provide adequate flood protection and drainage, if raising the weir and berm elevation to 33.6 would cause the level of water in Lake No. 7 to move laterally up the bank and encroach on property owned by Petitioners. However, the Club has given reasonable assurances that the Petitioners own only to the "top of bank" and that raising the weir elevation to 33.6 would not cause water levels to rise above the "top of bank" of the lake. If it is determined in pending state circuit court proceedings that the Petitioners own beyond the "top of bank," any permit for the Club's project might have to be modified to avoid flooding the Petitioners' property. With respect to potential flooding of secondary systems, such as adjacent roadways, raising the elevation of water in Lake No. 7 would decrease the capacity of the storm sewers draining into the Lake. However, the proposed modifications would not increase the area of impervious surface in the drainage basin or decrease the size of the lake, and water levels in the roadways probably would not rise much higher than under present circumstances. The existing storm sewer system is only designed for a 10-year storm event, so the supplemental effect on roadway flooding from retaining a 100-year storm event in Lake No. 7 probably would be negligible. The Club gave reasonable assurances that any increase in water levels on the roadways from the proposed modifications would not be considered a significant adverse effect because it still would not affect public access. Sarasota County's land development regulations allow flooding in streets of up to 12 inches for a 100-year storm event, nine inches for a 25-year storm event, and six inches for a 10-year storm event. No portion of the proposed project area is within the 100-year floodplain. The project will not have an adverse effect on water quantity attenuation or cause flooding of the Petitioners' property or secondary systems, such as adjacent roadways. Petitioners have protested the effect that this project will have on water quality within Lake No. 7, itself. Surface water quality standards do not apply within a stormwater pond. Stormwater ponds are essentially pollution sinks intended to receive polluted runoff. Where there is no discharge from a pond, water quality treatment is irrelevant. Lake 7 is not a "water resource within the District" pursuant to Section 40D-4.301(1)(j), Florida Administrative Code, and potential impact on water quality in Lake No. 7 should not be considered. Section 40D-4.301(1)(j) limits the issues to be considered by the District to downstream water quality, water quantity, floodplain impacts, and wetlands impacts. The commingling of wastewater effluent treated to a level of advanced secondary or advanced waste treatment (reuse water) would improve water quality within a stormwater treatment pond at least 90 to 95 percent of the time. Stormwater is very low quality compared to reuse water. In most respects, reuse water also will be better quality than the well water presently being used to augment the pond. It is expected to be better quality than unimpacted water in the receiving waterbody with respect to nitrogen content and only slightly worse with respect to phosphorus content. The addition of reuse water should not promote more algal growth; rather, it should reduce the likelihood of algal growth. It also should not increase the incidences of fish kills in Lake 7. Nor should it alter the nutrient concentrations in Lake 7 so as to result in an imbalance of the natural population of aquatic flora and fauna. In the draft permit originally proposed to be issued to the Club, permit conditions required that water quality be monitored at the point of discharge to waters of the state. This requirement was eliminated from the revised permit as the District determined that it was not necessary in light of the modification of the system to retain the 100-year storm event. The subject design does not account for recovery of the water quality treatment volume within a specified period of time. However, there is no such requirement in District rules when a pond entirely retains the 100-year storm event, as is the case with this project. Even if there were a discharge from the surface water management system in a storm event up to and including a 100-year storm event, the Club gave reasonable assurances that water quality standards in the receiving waterbody would not be violated because of the effects of dilution. This project will not cause discharges which result in any violations of applicable state water quality standards for surface waters of the state. Based on a number of factors, including the peak rate factor, the curve number and the seasonal high water elevation, the water level in Lake 7 would reach an elevation of 33.57 if a 100-year storm event occurs. This results in the retention of the 100-year storm in Lake 7. The District only considers the 100-year storm event, by itself. It does not consider other rainfall events before or after it. However, the District does presume that ponds are at their seasonal high water level when the 100-year storm event occurs and that the ground is saturated. With respect to the seasonal high water level, there was substantial conflicting testimony. The Club's consultant used a seasonal high water level of 31.0' for Lake No. 7 in his calculations. This was based on a geotechnical engineering report prepared by Ardaman & Associates. A seasonal high water elevation of 31.0' was also used in the original permit application in 1985. In concluding that the seasonal high water level should be 31.0, the Ardaman report relied on several assumptions, including plugging of the underdrain and overflow weir and no discharges into or pumping out of the lake. These assumptions were made to establish an historical water level. The Petitioners' consultant disputed the determination in the Ardaman report that the seasonal high for Lake No. 7 was 31 on the grounds that the report indicated groundwater levels of 32.8 on three sides of the lake. He also felt that water levels would rise in the lake over time as a result of it being, allegedly, a closed system. While he did not have an opinion as to what the appropriate seasonal high should be, he felt it would be higher than 31 but lower than 32.8. However, he did no modeling with respect to calculating a seasonal high water level and would normally rely on a geotechnical engineer, such as Ardaman & Associates, to calculate seasonal high water levels. The District generally does not receive information as extensive and detailed as that included in the Ardaman report when it reviews permit applications. Among other things, the Ardaman report indicates a gradient across Lake No. 7 which makes the determination of the seasonal high for the lake difficult. The groundwater flow gradient results from the fact that the elevation of Lake No. 6 is approximately three feet lower than the elevation in Lake No. 7. The elevation determined by Ardaman may well be conservative in that the seasonal high of 31 is above the midpoint of the gradient. Although Lake 7 will be designed as an essentially closed system, it will have inflow from rainfall, surface runoff, introduction of reuse water and groundwater inflow, and outflows by way of evapotranspiration, withdrawal for irrigation purposes, and groundwater outflows. To alleviate any concerns about the validity of the seasonal high, it would be reasonable to include a permit condition requiring the Club to monitor the water level in Lake 7 on a daily basis, using staff gauges, after modification of the control structure. If such monitoring indicated that the seasonal high water level exceeds 31.0, the District could consider options to address that situation, including reducing the level at which reuse water is introduced into the lake or requiring water quality monitoring at the point of discharge to receiving waters. Groundwater quality is regulated by the Department of Environmental Protection, not by the District. The DEP permit issued to Sarasota County for disposal of reuse water at the Club golf course requires the installation of two groundwater monitoring wells, one in fairly close proximity to Lake No. 7. The Overlooked Pond There is a small retention pond northwest of Lake 7, near lot 113. Neither the Club nor the District considered the effect of the Club's late modification of its application on the retention pond northwest of Lake 7 and adjacent properties. Lake 7 and the retention pond to its northwest are connected by an equalizer pipe. As a result, water levels in the pond will be affected by water levels in Lake 7. There was no evidence as to the elevations of the banks of the retention pond. There was no evidence as to whether the modifications to the Club's application will result in flooding of properties adjacent to the pond. There was no evidence that the Club owns or controls the retention pond or the properties adjacent to it that might be affected by flooding that might result from the modifications to the Club's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the Club's amended application. RECOMMENDED this 19th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2196 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. 1.-2. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease. Accepted and incorporated. However, there was other evidence from which it can be determined that Lake 7 is part of the Club's lease and from which the western extent of the Club's leasehold interests in Lake 7 can be determined. Accepted and incorporated. But the topographic survey, together with other evidence, does show the eastern extent of the Petitioners' property in relation to the "top of bank" of Lake 7 and the western extent of the Club's leasehold interests in Lake 7. Rejected as contrary to the greater weight of the evidence that uses must be "specifically authorized" in that the lease authorizes the use of the premises for a "golf course," which is presumed to include uses inherent to the operation of a golf course that may not be further specified in the lease, such as drainage facilities, like Lake 7, and facilities for irrigation of the golf course. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that the Club does not pay for the maintenance of Lake 7, at least as between the Club and its lessor, which is the subject of the pertinent lease provision. (There was evidence as to a dispute between the Club and the Petitioners, or at least some of them, as to who is responsible for maintenance of land in the vicinity of the western extent of Lake 7 and the eastern extent of the Petitioners' property. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence to the extent that there are "A" parcels between lots 115 through 120 and Lake 7. Otherwise, accepted and incorporated. Accepted and incorporated. Not clear whether all of the activities listed in the second sentence are done in the entire area up to the water's edge but, otherwise, accepted and incorporated. Accepted, but subordinate to facts contrary to those found, and unnecessary. Accepted; subordinate to facts found. Rejected. The intent of the parties is not clear and is the subject of litigation in state circuit court. 17.-18. Accepted that some probably used the words "to the water's edge"; others may have said "to the lake" or "to the approximate high water line." Regardless of what they said, the legal consequences are being litigated in state circuit court. Subordinate to facts contrary to those found, and unnecessary. 19.-20. Accepted and incorporated to the extent not subordinate or unnecessary.. Last sentence, accepted but subordinate and unnecessary. The rest is rejected as contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. The evidence was sufficient to place on Exhibit M-16 the boundary lines of the "A" parcels, as depicted on the Alberti boundary survey that was attached to the individual deeds to all of the "A" parcels, in relation to the "top of bank" of Lake 7 and other topographical features depicted on Exhibit M-16. The 0.679 acre total for the "A" parcels was merely transcribed from the Alberti boundary survey (probably incorrectly, as the boundary survey seems to indicate the acreage to be 0.674, plus or minus.) Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, it will spread more than before the modifications, up to a maximum spread of approximately ten feet. Rejected as contrary to the greater weight of the evidence. The Club gave reasonable assurances that the spread would be contained within its leasehold interest. However, consideration would have to be given to modifying the permit if the state circuit court determines in the pending litigation that the easterly boundary of the "A" parcels lies to the east of the "top of bank." Accepted and incorporated to the extent not conclusion of law. Accepted. Self-evident and unnecessary. Accepted and incorporated. Accepted, but subordinate, and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence. It does not prohibit it; it just does not authorize it. It provides that authorization may be obtained by permit modification. Accepted and incorporated to the extent not subordinate or unnecessary. 32.-36. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) 37. Rejected as contrary to the greater weight of the evidence that discharges will be "likely." (Accepted and incorporated that no discharges are expected as a result of storm events up to and including a 100-year storm event unless preceding conditions predispose the system to discharge during a 100-year storm event.) 38.-39. Accepted but subordinate and unnecessary. (As for 39., very little construction will be required for the proposed project.) Rejected as contrary to the greater weight of the evidence. First, Lake 7 will not be "maintained" at 31'; rather, when it falls below 30.5', a half inch will be added. Second, it is not clear that the Ardaman report established an "artificially low seasonal high water level." (There is a hydraulic gradient across Lake 7 from east to west, approximately. The Ardaman report assumed no flow into or out of Lake 7; it also assumed no pumpage into or out of the lake.) Rejected as contrary to the greater weight of the evidence that it is based "solely" on that assumption. Accepted and incorporated that it is based on that and on other assumptions. Accepted and incorporated. Accepted but subordinate and unnecessary. (Evidence was presented at final hearing.) Rejected as not supported by evidence. Rejected as contrary to the greater weight of the evidence to the extent that the impact is obvious--the water level in the pond will be approximately equal to the water level in Lake 7. Rejected as contrary to the greater weight of the evidence. The modification itself would not cause the water level to rise. If, due to the combined influence of all the pertinent factors, the water level in Lake 7 rises, so will the water level in the pond. 47.-48. Accepted and incorporated. 49.-50. Accepted but subordinate and unnecessary. 51.-52. Accepted and incorporated. Respondents' Proposed Findings of Fact. 1.-7. Accepted and incorporated. 8. Rejected as contrary to the greater weight of the evidence in that there was more to the application than just substitution of reuse for well water. 9.-10. Accepted and incorporated. 11. Accepted and incorporated to the extent not subordinate or unnecessary. 12.-22. Accepted and incorporated. Rejected as not proven. (The two District witnesses disagreed.) Even if true, subordinate to facts contrary to those found. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. 28.-29. Accepted; subordinate to facts found, and in part conclusion of law. 30. Accepted. First sentence, incorporated; second sentence, subordinate to facts found, and in part conclusion of law. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary, or conclusion of law. Accepted but subordinate to facts contrary to those found. 39.-40. Accepted and incorporated to the extent not subordinate or unnecessary. 41.-43. Accepted and incorporated. Accepted and incorporated to the extent not conclusion of law. Last sentence, accepted and incorporated to the extent not conclusion of law; rest, accepted but subordinate to facts contrary to those found, and in part conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted, but subordinate, and unnecessary. Accepted and incorporated. First sentence, accepted but subordinate to facts contrary to those found; second sentence, accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. 51.-52. Accepted and incorporated. 53.-55. Accepted, but subordinate to facts found, and unnecessary. 56. Accepted and incorporated. 57.-62. Accepted and incorporated to the extent not subordinate or unnecessary. 63. Accepted and incorporated to the extent not conclusion of law. COPIES FURNISHED: Patricia A. Petruff, Esquire D. Robert Hoyle, Esquire Dye & Scott, P.A. 1111 Third Avenue West Bradenton, Flroida 34206 Mary F. Smallwood, Esquire Ruden, Barnett, McClosky, Smith, Schuser & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Mark F. Lapp, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston,Esq. General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, 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 14th day of April, 2011.
The Issue The issue is whether Respondent's water use permit should be revoked for nonuse of the permit for a period of two years or more.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The District is a state agency charged with the responsibility of issuing water use permits under Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40B- 2 for the geographic area under its statutory jurisdiction. Alachua County is within that geographic jurisdiction. Respondent is a Florida corporation with offices at 700 Northwest Cheeota Avenue, High Springs, in northern Alachua County. It owns approximately 700 acres in High Springs (west of Interstate Highway 75) on which it operates a church retreat and summer camping and recreational facility known as Camp Kulaqua. The property surrounds, and is contiguous to, Hornsby Spring, a first-order magnitude spring (having a flow rate of 100 CFS or greater) which, under normal conditions, discharges into the nearby Santa Fe River. Hornsby Spring is one of 296 documented springs within the District's jurisdiction. After receiving an overture from a representative of a private water bottling company, on September 28, 1999, Respondent filed an application for a General Water Use Permit in Township 7 South, Range 17 East, Section 26, in High Springs. In its application, Respondent represented that it desired a daily allocation of 2,000,000 gallons; that it intended to install two 12-inch wells, each having a capacity of 1,400 gallons per minute, just east of, and upgradient from, Hornsby Spring; and that all water withdrawals would be used in conjunction with a privately-owned commercial spring water bottling facility to be located on its property. The application also represented that the facility would employ 36 persons and operate 168 hours per week. The application was reviewed by a former District hydrogeologist, William H. Kirk. During the review process, and in response to Mr. Kirk's request for more information, Respondent provided a comparison of the requested allocation with the overall flow of Hornsby Spring. This was because Mr. Kirk was concerned that the requested allocation was "a bit high," and he wanted to ensure that the issuance of the permit would not cause harm to, or adversely affect, the water resources. Under a professional guideline that Mr. Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact." Notwithstanding Mr. Kirk's use of this guideline, the District points out that there is no District rule or policy sanctioning the ten percent rule, and at hearing it denied that this standard is used by the District in assessing water use applications. Further, the Permit itself does not refer to a relationship between spring flow and the size of the allocation. Even so, this analysis was considered by Mr. Kirk in determining whether Respondent had given reasonable assurance that the spring would not be impacted. In its response to the request for additional information, Respondent reduced its requested allocation to 750,000 gallons per day and indicated that if a bottling plant were to be constructed on its property, approximately 700,000 gallons of the total allocation would be consumed in "bulk transfer and bottling," with the remainder for camp use. More specifically, Respondent indicated that it would allocate 490,000 gallons per day for bulk transport, 210,000 gallons per day for spring bottling water, and 50,000 gallons per day for incidental uses at its property. By reducing the allocation from 2,000,000 gallons per day to 750,000 gallons per day, Respondent's requested average daily allocation represented only 0.4 percent of the average daily spring flow as measured over the last 28 years. The reduced allocation satisfied Mr. Kirk's concern that Respondent demonstrate a reasonable demand and a reasonable need for that allocation, and he recommended approval of the application.2 On February 25, 2000, the District approved the application and issued Water Use Permit No. 2-99-00130 (Permit).3 The Permit authorizes an average daily withdrawal of 0.7500 million gallons per day (750,000 gallons per day) or a maximum daily withdrawal and use of 0.7500 million gallons per day with an annual allocation not to exceed 273.750 million gallons (273,750,000 gallons) per calendar year in conjunction with the operation of a privately-owned water bottling plant. The Permit expires on February 25, 2020. After the Permit was issued, under the regulatory process in place, Respondent was required first to obtain a permit for a temporary test well which would be used to collect information concerning the site of the proposed activity, and to then file an application for permits authorizing the construction and operation of the two 12-inch production wells. The Permit contains a number of conditions, two of which require a brief comment. First, Condition No. 2 provides that "[t]his permit is classified as unconfined [F]loridan aquifer for privately owned bottled water plant." This means that all water withdrawals must be made from the unconfined Floridan aquifer, as opposed to the spring head of Hornsby Spring. (Respondent's proposed siting of its two production wells 660 yards east of the spring is consistent with this provision.) Second, Condition No. 4 provides that "[t]he permittee shall submit daily pumpage records on a monthly basis to the [District]." Pumpage reports are filed by permittees so that the District can determine whether the permit is actually being used, and if so, to ensure that the amount of water being withdrawn under the permit does not exceed the authorized allocation. As it turned out, pumpage reports were never filed by Respondent. (However, the record shows that the District has never strictly enforced this requirement for any permittee.) In late 2002, the District staff undertook a review of the nine water bottling permit holders within its jurisdiction, including Respondent. That category of permit holders was selected for review because of the small number of permits and the limited resources of the District staff. (In all, the District has probably issued several thousand permits to other types of users.) On February 4, 2003, the District served its Complaint under the authority of Sections 120.60 and 373.243, Florida Statutes, and Florida Administrative Code Rule 40B-2.341. As grounds for revoking the permit, the District alleged that there was "non-use of the water supply allowed by the permit for a period of two (2) years or more." Although Respondent contends that it should have been given an opportunity to correct the nonuse allegation before the Complaint was issued, nothing in the Administrative Procedure Act or District rules requires that this be done. Until the issuance of the Complaint against Respondent in early 2003, and similar Complaints against eight other permit holders at the same time, the District had never invoked this statutory provision.4 There is no evidence to support Respondent's contention that the Complaints were issued for "purely political reasons." On March 4, 2003, Respondent requested a formal hearing challenging the District's proposed action. In the parties' Pre-Hearing Stipulation, the issues have been broadly described as follows: whether Section 373.243(4), Florida Statutes, is to be strictly or liberally construed; whether Respondent's nonuse is based upon extreme hardship for reasons beyond its control; and whether the District is equitably estopped from permit revocation. (According to the District, even if the Permit is revoked, such revocation is without prejudice to Respondent reapplying for, and receiving, another permit so long as it meets all applicable requirements.) Equitable Estoppel Respondent first contends that the District is estopped from revoking its Permit on the theory that, under the circumstances here, the doctrine of equitable estoppel applies. For that doctrine to apply, however, Respondent must show that the District made a representation as to a material fact that is contrary to a later asserted position; that Respondent relied upon that representation; and that the District then changed its position in a manner that was detrimental to Respondent. See, e.g., Salz v. Dep't of Admin., Div. of Retirement, 432 So. 2d 1376, 1378 (Fla. 3d DCA 1983). The District issued Respondent's Permit on the condition that Respondent operate in conformity with all pertinent statutes and regulations. This finding is consistent with language on the face of the Permit, which states that the Permit "may be permanently or temporarily revoked, in whole or in part, for the violation of the conditions of the permit or for the violation of any provision of the Water Resources Act and regulations thereunder." Respondent relied on the District's representation that it could use the Permit so long as it complied with all statutes and regulations. In reliance on that representation, in addition to staff time, after its Permit was issued, Respondent expended "somewhere around" $70,000.00 to $74,000.00 for conducting water quality testing; sending cave divers underground to ascertain the correct location of the portion of the aquifer on which to place its production wells; drilling a 6-inch test well in August 2000; obtaining the City of High Springs' approval in March 2000 for industrial zoning on a 10-acre tract of land on which to site a "water plant"; and engaging the services of a professional who assisted Respondent in "seeking out businesses and getting the right qualifications of the spring water to make sure that it was a marketable water." The District has never asserted anything different from its original position: that if Petitioner complied with all statutes and rules, it could continue to lawfully make water withdrawals under its Permit. The issuance of the Complaint did not represent a change in the District's position. Because a change in position in a manner that was detrimental to Respondent did not occur, the necessary elements to invoke the doctrine of equitable estoppel are not present. Was the Permit Used? A preliminary review by District staff indicated that Respondent had never filed the daily pumpage reports on a monthly basis and had never requested permits authorizing the construction of the two 12-inch production wells. These preliminary observations were confirmed at final hearing, along with the fact that Respondent has never entered into an agreement with a water bottling company (although draft agreements were once prepared); that Respondent has never constructed a water bottling facility; and that no operations were ever conducted under the Permit. Therefore, the evidence supports a finding that Respondent did not use its Permit for the two-year period after it was issued, as alleged in the Complaint. Respondent's contention that the evidence fails to support this finding belies the evidence of record. In an effort to show that it actually used the Permit, Respondent points out that in August 2000 it applied for, and received a permit to construct, an unmetered 6-inch test well in association with its General Water Use Permit. (Respondent sometimes erroneously refers to the test well as a test production well. This is incorrect as the well is a test well, and not a production well.) After the test well was installed, at some point Respondent says it began withdrawing approximately 50,000 gallons per day of water from that well for incidental uses associated with the operation of Camp Kulaqua.5 These withdrawals were made on the assumption that the test well permit fell under the broad umbrella of the General Water Use Permit. (Respondent also has a permitted 6- inch diameter well and an unregulated 4-inch well on its premises, both of which are used for water supply needs at Camp Kulaqua.) It is true, as Respondent asserts, that its Permit authorized incidental withdrawals of up to 50,000 gallons per day for unspecified uses at Camp Kulaqua. However, these withdrawals are authorized under the General Water Use Permit and not the test well permit. The two permits are separate and distinct. On the one hand, a test well is intended to be temporary in nature and used only for the purpose of test well development and collecting information regarding the height of the aquifer and water quality at the site of the proposed activity. Conversely, withdrawals for any other purpose, even incidental, must be made from the production wells, which are only authorized by the General Water Use Permit. Before a test well can be used for normal consumptive purposes, the permit holder must seek a modification of the permit to include it as a part of its general water use permit. Here, no such modification was sought by Respondent, and no authorization was given by the District. Therefore, Respondent's incidental water uses associated with its test well cannot be counted as "uses" for the purpose of complying with the use requirement in Section 373.243(4), Florida Statutes. In light of the District's credible assertion to the contrary, Respondent's contention that it is common practice to lawfully withdraw water from a test well for incidental consumptive purposes has been rejected. (It is noted, however, that the District has not charged Respondent with violating the terms of its test well permit.) Extreme Hardship Under Section 373.243, Florida Statutes (which was enacted in 1972), the District is authorized to revoke a water use permit "for nonuse of the water supply allowed by the permit for a period of 2 years." However, if the user "can prove that his or her nonuse was due to extreme hardship caused by factors beyond the user's control," revocation of the permit is not warranted. The phrase "extreme hardship caused by factors beyond the user's control" is not defined by statute or rule. In the context of this case, however, the District considers an extreme hardship to occur under two scenarios. First, if the aquifer level has dropped so low due to drought conditions that a permit holder cannot access the water through its well, its nonuse is excusable. Alternatively, if an emergency order has been issued by the District directing permit holders (including Respondent) to stop pumping due to certain conditions, an extreme hardship has occurred. (Presumably, a severe water shortage would precipitate such an order.) In this case, the District issued a water shortage advisory, but not an emergency order, due to a "severe drought," indicating that users could still pump water, but were encouraged to voluntarily reduce their usage. This advisory remained in effect from the summer of 1998 until the spring of 2003, when a severe drought ended. However, no emergency order was ever issued by the District. Respondent contends that its nonuse was due to an extreme hardship caused by factors beyond its control. More specifically, it argues that a severe drought occurred in Alachua County during the years 1998-2003, and that under these conditions, federal regulations prevented it from withdrawing water for bottling purposes, which was the primary purpose for securing a permit. Further, even if it had withdrawn water during these drought conditions, such withdrawals could have adversely impacted Hornsby Spring and constituted a violation of a District requirement that water resources not be adversely impacted. Because an investment of several hundred thousand dollars was required to drill and install the two production wells, Respondent contends it was not financially prudent to make that type of investment and begin operations until normal spring conditions returned. These contentions are discussed in greater detail below. Around September 7, 1999, a representative of a water bottling company first approached Respondent about the possibility of the two jointly operating a water bottling plant and/or transporting water in bulk from Respondent's property. Prompted by this interest, less than three weeks later Respondent filed its application for a water use permit (although at that time it did not mention on the application that off-site bulk transfers would occur), and a permit was eventually issued in February 2000. Later, and through a professional firm it employed, Respondent had discussions with representatives of several bottling companies, including Great Springs Waters of America (Great Springs) and Perrier Group of America. Apparently, these more serious discussions with a potential suitor did not take place until either late 2000 or the spring of 2001. Periodic measurements taken by District staff at Hornsby Spring reflected natural drought conditions from April 2000 to April 2003. As noted earlier, this was the product of a "severe drought" which took place between the summer of 1998 and the spring of 2003; the drought was one of a magnitude that occurs only once in every 50 to 100 years. During the years 2000 through 2002, the spring had zero flow or was barely flowing much of the time.6 Had Respondent pumped water during 20 out of the 24 months after the Permit was issued, it could have potentially violated the requirement that it not harm Hornsby Spring. This fact is acknowleged by a District witness who agreed that if the "spring is not flowing, . . . [pumping] would have an [adverse] impact." Even as late as October 2003, the spring had tannic discoloration caused by the lengthy drought conditions. The parties agree, however, that there is no water shortage in the District at the present time. To illustrate the difficulty that it experienced in obtaining a joint venture partner for water bottling purposes, Respondent established that in the spring of 2001, a Great Springs representative visited the site when the spring was "barely flowing." For obvious reasons, Respondent could not "bring a party there who would want to enter into a business [agreement]" under those conditions. These same conditions remained in effect during most of the two year period. The District points out, however, that even though the spring was low or barely flowing, so long as the aquifer itself was not too low, Respondent could still withdraw water from the aquifer, since Condition 2 of the Permit authorizes withdrawals from the aquifer, and not the spring. The reason for this apparent anomaly is that when a spring ceases to flow, the aquifer has simply dropped below the level of the spring vent; even under these circumstances, however, there may still be a substantial quantity of water in the aquifer available for pumping. Assuming that it could still lawfully pump water when the spring was dry or barely flowing without causing adverse impacts to the spring, Respondent was still subject to federal regulations which govern the bottling of spring water. See Title 21, Part 165, C.F.R. For spring water to be marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi) requires that the water "be collected only at the spring or through a bore hole tapping the underground formation feeding the spring." This means that the bore hole had to be physically connected with the cave system feeding Hornsby Spring or produce water of the same quality as that discharging from the spring. The regulation goes on to provide that "[i]f spring water is collected with the use of an external force [such as by a pump], water must continue to flow naturally to the surface of the earth through the spring's natural orifice." While this regulation obviously does not prohibit Respondent from pumping water, since that authority lies within the District's exclusive jurisdiction, it does provide that in order to use spring water for bottling purposes, the water must continue to flow naturally from the aquifer to the spring. If it does not, the water cannot be used for this purpose. Because Hornsby Spring had zero flow for parts of 2001 and 2002, and severely reduced flows during most of the other time during the two-year period ending February 2002, Respondent was effectively prevented by the foregoing regulation from using the water for bottling purposes. Therefore, Respondent's nonuse was due to extreme hardship caused by factors beyond its control -- a severe drought lasting throughout the two-year period after the Permit was issued, and federal regulations which prevented it from using water for the purpose for which the Permit was issued. Thus, the nonuse is excusable.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should issue to Century Realty Funds, Inc. (Century) Environmental Resource Permit (ERP) No. 44000227.002 (the ERP), which would modify Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 (the Permit) and Stormwater Exemption No. EO1481, issued by the District to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park located in Mulberry, Polk County, Florida.
Findings Of Fact The District issued Management and Storage of Surface Waters (MSSW) Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century in July 1985 for construction of a surface water management system for Angler's Green Mobile Home Park (MHP) located in Mulberry, Polk County, Florida. Angler’s Green MHP Angler’s Green MHP is an 83-acre residential golf course development of approximately 385 homes located off of State Road 37 near Mulberry. Residents at Angler’s Green own their own mobile homes and lease the residential lots pursuant to annual leases expiring December 31 of each year, with guaranteed renewal conditioned upon owner compliance with the terms and conditions of the lease. Prior to being developed as a mobile home park, the property which is now Angler’s Green MHP was part of a phosphate mining operation and was reclaimed under a phosphate mining land reclamation plan approved by the Florida Department of Natural Resources and a reclamation contract dated September 4, 1984. Final contours of the Angler’s Green site were made in accordance with the approved reclamation plan. After reclamation contouring, a 23-acre manmade (former phosphate mine pit) lake remained in the northeast quadrant of the Angler's Green site. The resulting lake had a finger arm (bay or cove) extending from the southwest corner of the main body of the lake, oriented in a north-to-south direction and located west of a peninsula of land extending into the northwest part of the lake from the north. The lake also had a short, narrow canal leading into the main body of the lake from the south; the canal connected at a right angle to longer narrow waterway to the south of and extending parallel to the main body of the lake in an east-to-west orientation. There also were two smaller ponds on the property after reclamation contouring. After reclamation, surface water onsite generally flowed westerly and discharged from the property to a railroad ditch along the western boundary of the property. The recorded post-reclamation, pre-development water level for the 23-acre lake, as indicated on the site grading plans, was around 127.1 to 127.8 feet above Mean Sea Level (M.S.L.). The 1985 Permits On July 10, 1985, the District issued MSSW Permit No. 400227.000 and Stormwater Exemption No. EO1481 to Century to authorize the construction of a surface water management system for Angler’s Green. The MSSW Permit had an expiration date of July 10, 1988. As designed, the permitted Angler’s Green surface water management system was to route internal stormwater runoff to swales, detention ponds, and catchment areas before discharging through a sidebank sand filtration system (a berm approximately 300 feet long containing an 8” perforated drain pipe covered by a filter fabric and sand filter material) to receiving waters at the northwest corner of the property. The permitted system was designed with five drainage areas known as Basins A through E. Basin A was in the southeast quadrant of the site; Basin B was to its east in the southeast quadrant of the site; Basin E was to the north of Basin A and included the 23-acre former phosphate mining pit reclaimed as an artificial lake, which was referred to as “Lake E” or sometimes “Pond E"; Basin C was to the west of Basin E; and Basin D was to the west of Basin C and to the north of Basin B. The two smaller ponds on the property were designated Pond C-1 and Pond B-1 and were located in Basin C and Basin B, respectively. Basin D was in the northwest corner of the site; the discharge structure was in the northwest corner of Basin D. As the system was designed, stormwater from Basin E would appear to sheet flow naturally into Lake E; stormwater from Basin A would appear to flow naturally to the southwest, away from Lake E, but the system routed the water from the southwest corner of Basin A to the western end of the waterway on Lake E through an underground pipe. Stormwater from Basin B was to flow to and be retained in Pond B-1; as the system was designed, surface water was not designed to discharge offsite from Basin B. As designed, Lake E served as a detention pond for water from Basin E and Basin A. It was to have a control structure (CS-1) in the arm of Lake E that would produce a seasonal fluctuation range of two feet, from 127.5’ above M.S.L. to 129.5’ above M.S.L. Stormwater discharging from CS- 1 was to be conveyed by pipe to Pond C-1, where it was to mingle with surface water draining from Basin C. When full, Pond C-1 would cascade into the golf course area in Basin D and, as necessary, in a portion of Basin B. After catchment and detention in the golf course area, overflow was eventually and ultimately to discharge offsite through the side-bank sand filtration system in the northwest corner of Basin D. In this manner, the Angler’s Green surface water management system was designed to accommodate the 24-hour, 25- year storm event, which was estimated to produce approximately 8 inches of water in a 24-hour period. It also was designed to comply with the water quality requirements as specified in Florida Administrative Code Chapter 17-25 (1985 Ann. Supp.) by detaining the first half-inch of runoff before discharging it offsite through the sidebank sand filtration system in the northwest corner of Basin D. (All rule citations are to the Florida Administrative Code.) Omission of the Stangls During the review process, the District noted from drawings submitted as part of Century's MSSW Permit application that the project area did not include approximately the eastern third of the main body of Lake E. District staff brought this to Century's attention in a request for additional information (RAI) and stated: "If possible, you should obtain a perpetual right to operate and maintain the lake from other owners." In response, Century falsely represented to the District that L. Kirk McKay, a joint venture partner of Century, was the only riparian owner on Lake E and that Century had obtained from him a perpetual right to operate and maintain Lake E as part of the MSSW Permit. In fact, the Stangls owned property on the east side of the lake, including approximately 500 feet of lakefront and contiguous lake bottom. The Stangls and two partners purchased the property from McKay himself in 1979. The Stangls bought out their partners in 1984. The District relied on Century's misrepresentation. The District would not have issued the MSSW Permit to Century if the District had known that Century did not own or control all the land being used for the Permit--specifically, including all of Lake E. See Rule 40D-4.101(1)(d) and (2)(d)6. (1985) (application must include "evidence of ownership or control"). In addition, because the District was unaware of the Stangls' ownership of a portion of Lake E, the District did not require Century to give the Stangls direct, actual notice of the Century's permit application. Instead, the District only required that Century publish notice of the District’s receipt of the permit application. Notice was published on April 3, 1985, in the Lakeland Ledger, a newspaper of general circulation qualified under the terms of Section 50.011, Florida Statutes. But the Stangls did not see the published notice, were unaware of the permit application, and did not ask to participate in the permitting process. The Stangl property adjacent to Angler’s Green remained undeveloped and unoccupied until 1999, when the Stangls' son, John, established a business on the site. Prior to 1999, the Stangls visited the property a couple times a year. They were fully aware of the construction and operation of Anglers Green as a mobile home park across Lake E. During this time, Century leased 385 lots with guaranteed annual renewal conditioned only upon compliance with lease terms and conditions. Amenities under the leases included clubhouse and golf course privileges. At no time before 2000 did the Stangls take any action to challenge the validity of Century's 1985 MSSW Permit. 1985 Surface Water Management Permitting Requirements In 1985, permitting requirements for surface water management systems were divided between two regulatory schemes. Surface water management permits in Polk County were issued by the District under Chapter 373, Florida Statutes, and Rule Chapters 40D-4 and 40D-40, which addressed water quantity and flooding issues for projects greater than and less than 40 acres, respectively. Water quality permits or exemptions from water quality permitting requirements were issued by the Department of Environmental Regulation under Chapter 403, Florida Statutes, and Rule Chapter 17-25 to address water quality concerns. It was not until 1988 that permitting requirements were consolidated into the MSSW regulatory program administered by the District under Rule Chapters 40D-4 and 40D-40. In 1985, the District did not have a Basis of Review (BOR) to specify system design requirements for applicants to provide reasonable assurances that the conditions for issuance of surface water permits were satisfied. Standards and criteria for the design and performance of surface water management systems were contained in Rule 40D-4.301(2) (1985) Under subsection (2)(i) of that rule, projects designed to meet the requirements of Chapter 17-25 [Regulation of Stormwater Discharge] were presumed to meet applicable State water quality requirements. There were no requirements for wet detention pond littoral zones. 20. Under Rule 17-25.03(2)(b) (1985 Ann. Supp.), stormwater management systems for projects with drainage areas less than 100 acres that provided retention or detention with filtration of the first half-inch of runoff were exempt from the permitting requirements of Rule Chapter 17-25. 21. In 1985, District Rule 40D-4.301(2)(j) (1985) allowed for natural areas and existing water bodies to be used for stormwater retention or detention purposes when not in conflict with environmental or public use considerations. Areas that could be considered for this purpose included previously-degraded areas or man-made areas (such as borrow pits). Apparently, the District allowed Century to use Lake E as a detention pond under this provision. Deviations from MSSW Permit Angler’s Green MHP was constructed in two phases, with the first phase completed in 1985, and the second phase completed in 1987. Construction of at least the part of the surface water management system to serve the first phase took place prior to 1985; it was not clear from the evidence whether construction of the part of the surface water management system to serve the second phase also took place prior to 1985, but it clearly took place prior to construction of the second phase in 1987. Condition No. 4 of Century's MSSW Permit required the submittal of a certification that the system was constructed in accordance with the approved and permitted design. But Century did not provide any such certification. Century also never certified to the District that its new stormwater discharge facility, as constructed, continued to qualify for exemption from State water quality requirements. Although the surface water management system was constructed and operating, the District never transferred the 1985 Permit to the operation phase. In several respects, the Angler’s Green surface water management system was not constructed as designed, approved, and permitted in 1985. The pipe to convey stormwater from the southwest corner of Basin A back to the Lake E waterway apparently never was constructed; instead, stormwater from Basin A was routed to Pond B-1. (There also was a berm constructed in Basin A near the southern boundary of the site; but that berm apparently was a visual berm, and there was no evidence that it affected performance of the surface water management system.) Control structure CS-1 (which was supposed to be located in the arm or bay of Lake E) and the pipe to convey overflow from there into Pond C-1 also never were constructed. By the early 1990's, Angler's Green was experiencing flooding in the golf course area in Basin D and B for extended periods of time. In November 1993, the District responded to a complaint of flooding in that vicinity. Upon investigation, the District determined that malfunction of the surface water management system serving Reservation Lakes (now known as Paradise Lakes), a development to the north and downstream of the Angler's Green system, was causing water to back up through the wetlands and the sand filtration system in the northwest corner of the Angler’s Green project. As a result, water overtopped the discharge structure, equalized at levels above the top of the discharge structure's berm, and flooded the golf course for extended periods of time. At some undetermined point in time, an unpermitted pond was dug in Basin D, apparently in an attempt to alleviate flooding of the golf course. In addition, possibly for the same purpose, a pump was installed in Basin D near Pond C-1, and a pipe was installed to convey stormwater from there into Lake E. The sidebank sand filtration system designed to provide filtration of stormwater prior to discharge from the northwest corner of the site does not appear to exist today. It may be present but difficult to see after 15 years of plant growth; or it may have been removed or disturbed as a result of re-grading in the area. However, the evidence proved that the discharge structure was present in 1993, and there is no reason to believe that it was not installed during construction of the surface water management system--i.e., by 1987 at the latest. In addition, at some undetermined point in time, a pipe was installed at the northeast corner of Lake E to convey overflow from Lake E eastward to a drainage ditch located alongside SR 37 to the north of the Stangls' property. No witnesses could testify as to when the pipe to the SR 37 ditch was installed or its elevation. (The District and Century state in their PRO that Map No. 2 in P/I Exhibit 14--an aerial map/survey submitted to the District by Century on August 13, 1990, as part of Century's 1990 Water Use Permit No. 209993.000 application--notes the pipe's elevation as 127.95 feet above M.S.L.; but no such finding could be made from review of the exhibit.) Roads in Angler's Green have inverted crowns to convey runoff from roads, driveways, and roofs away from mobile home lots. Some runoff from these impervious surfaces appears to be directed into a swale on the east side of the site; this swale leads to Lake E. In addition, approximately 12 drains have been installed in or near roads in Angler's Green that convey water through pipes directly into Lake E or Pond C-1. Under current Rule Chapters 40D-4 and 40D-40, road drains connecting impervious surfaces to Lake E would have to be shown on application construction drawings, and separate stormwater calculations would have to be provided in an application. But in 1985 this was not required. Century's calculations, together with flow arrows on drawings showing the direction of stormwater flow towards the detention ponds, were considered sufficient--especially since Century's calculations used a relatively high runoff co-efficient. As a result, the existence of these drains and pipes are not considered to be substantial deviations from the original, approved design. Similarly, approximately 64 roof drains and pipes conveying water from roofs directly into Lake E and Pond C-1 would not be considered substantial deviations from the original, approved design. In addition, these apparently were installed by mobile homeowners over the years, not by Century. From 1985 to 2000, the District did not have occasion to address regulatory concerns at Angler’s Green, except for the complaint of flooding in the golf course area that occurred in November 1993 and a more recent complaint about an area of the golf course that was designed to flood under certain conditions. Otto Stangl’s Complaint and the District’s Response Around November 1999, John Stangl noticed a fish kill in the ditch along SR 37 near the Stangl property. He also was contacted by a governmental compliance officer concerning the fish kill. Upon investigating, John Stangl saw the unpermitted pipe leading from Lake E that was discharging into the SR 37 ditch where the fish kill was observed, as well as the unpermitted pump that was pumping water from the Angler’s Green golf course area through a pipe that discharged into Lake E. In February 2000, Otto Stangl complained to the District about the fish kill and the existence of the unpermitted structures associated with Lake E. Upon receiving Otto Stangl’s complaint, District staff conducted site visits of the Angler’s Green project. Staff observed the unauthorized pump and pipe conveying water from Pond C-1 to Lake E and the unauthorized pipe conveying water from Lake E to the SR 37 ditch. Staff also observed that the Lake E control structure was missing, the pipe to convey stormwater from Basin A to Lake E was missing, and Basin D had been re-graded. In February 2000, the District also became aware of the fact that Century did not have full ownership or control of Lake E. On March 15, 2000, the District issued Century Notice of Non-Compliance and directed Century to either construct the system as designed and permitted or to seek a permit modification. On May 8, 2000, Century submitted a letter application to modify the original MSSW Permit No. 400227.000 by constructing the originally permitted Lake E control structure and pipe conveying water from Lake E to Pond C-1, but in a different location in Lake E than originally permitted due to the existence of homes at the location where these structures were originally planned. The application was subsequently amended to be a formal modification upon Century’s request for further modification to allow Basin A stormwater to flow to Pond B-1 and to expand Pond B-1 and add a control structure and an effluent filtration system. Despite having actual knowledge since at least February 2000 that the Angler's Green surface water management system was built partially on their property, the Stangls did not ask for a hearing on the 1985 Permit. Instead, they awaited the District's consideration of Century's modification application and sought to challenge the District's notice of intent to grant the modification permit issued on October 29, 2001. The District’s Regulatory Compliance Practices In the 1980's, the District appeared to pay little or no attention to construction of permitted projects or submission of required post-construction certifications. Many projects permitted by the District in the 1980’s, such as Angler’s Green, were built and operating although no certifications had been submitted; as a result, the permits issued for these projects never were transferred to the operation phase. Eventually, some projects not built in compliance with issued permits came to the attention of the District, typically through third-party complaints about drainage problems and flooding. By this time, there was a large backlog of issued construction permits for which no required post-construction certifications had been submitted. The backlog of these older projects was so large that the District decided not to initiate an aggressive, systematic, and comprehensive review of all permits for which no required certifications had been submitted. Instead, projects were checked on an ad hoc basis as complaints regarding the functioning of their surface water management systems were registered. When it came to the attention of the District in this manner that a project had been built under an MSSW permit but that no required certifications had been submitted, the District first attempted to secure the required certifications in the form of certified as-built construction drawings and a Statement of Completion, as required by BOR 2.7. In so doing, it was common practice for the District to accept certifications beyond the expiration date on a permit. If projects were substantially completed, the District would not deem the permit as expired simply because the required certifications had not been submitted before the expiration date; and such projects did not lose their status as being permitted. It should be noted that, according to the testimony of the District's expert, William Hartmann, this agency practice was not based on an interpretation of Rule 40D- 4.321(1)(b) (1985) (on duration of construction permits). Rather, the agency practice was to ignore the expiration of the construction permit under those circumstances. In addition, it does not appear from the evidence that the District ever before has faced the situation presented in this case--where a person on whose property part of a surface water management system was built without the person's consent opposes modification and asserts the construction permit has expired. In cases where the agency's practice was applied, if the required certified as-built construction drawings and Statement of Completion could not be provided because the project was not built in accordance with the MSSW permit, the District would require the permittee to either bring the system into compliance with the approved permit designs or obtain a modification of the construction permit. Letter modifications would be accepted when the requested modification would not substantially alter the permit authorization, increase the authorized offsite discharge, impact the environmental features of the project, decrease the required retention/detention, decrease the required flood control elevations for roads or buildings, or decrease pollution removal efficiency. See Rule 40D-4.331(2)(b) (1985). (The current version of the rule adds renewal or extension of the existing permit duration.) Alterations meeting the threshold requirements for a letter modification would be presumed to meet the conditions for issuance for a permit. Otherwise, formal permit modifications would be required. When application is made for a permit modification, the District’s practice is to evaluate those aspects of the surface water management system being modified. Review generally would not extend to the entire system. Permittees seeking to modify their surface water management systems generally are not required by the District to bring the unmodified portions of the system into compliance with current design criteria. Proposed ERP Permit Modification ERP Application No. 44000227.002 seeks authorization to modify portions of the Angler’s Green surface water management system. The specific alterations for which approval is sought are: permanent removal of the existing, unpermitted 18-inch pipe between Lake E and SR 37 roadside ditch; permanent removal of the pump and associated piping conveying water from Pond C-1 to Lake E; installation of the control structure (CS-1), together with installation of pipe to convey water from the control structure to Pond C-1, as designed and approved in the 1985 Permit but different location in the northwest corner of the main body of Lake E; re-grading of the northwesterly portion of the golf course to more closely conform to the original permitted plan and help keep Basin B separate from Basin D; reconstruction of the side-bank sand filter system in the northwest corner of the property, as designed and approved in the 1985 Permit but with a slightly higher invert elevation (122.04 feet above M.S.L.) to prevent water from backing up into Angler's Green from Paradise Lakes again, and with a concrete flume and spreader swale between Pond C-1 and the berm of the side-bank sand filter system; enlargement of Pond B-1; installation of a control structure on Pond B-1; and installation of 100 feet of 6-inch side-bank sand filter discharging to the southwest corner of the property from Pond B-1. By removing the unpermitted pipe to the roadside ditch along SR 37 and by constructing control structure CS-1, with the same control elevations as in the 1985 Permit (albeit at a different location in Lake E), and connecting CS-1 by pipe to Pond C-1 as envisioned in the 1985 Permit, the function of Lake E should approximate its function under the design approved in 1985. Modifying the permitted design to authorize Basin A to flow to Pond B-1 instead of Lake E results in less water flowing to Lake E; these changes will not increase water quantity or quality impacts to Lake E, as compared to the 1985 Permit. As compared to reclamation conditions prior to implementation of the 1985 Permit, water quantity and quality impacts to Lake E would be expected both under the system as designed and permitted in 1985 and as proposed to be modified, by virtue of the similar use of Lake E as a detention pond under either system. Pond B-1 is being enlarged to better accommodate the flow from Basin A. The control structure being added at Pond B-1 will control flow into the swale to the west so as to address water quantity impacts in that area. Stormwater calculations for the revised Pond B-1 demonstrated that the post-development discharge rate will not exceed the pre- development discharge rate, so that there are no concerns for adverse water quantity impacts to receiving waters or adjacent lands or flooding impacts to on-site or off-site property. The historical flows to the west are still maintained. The discharge structure being added at Pond B-1 will account for treatment of the Basin A flow. Based on calculations for revised Pond B-1, the enlarged pond will retain and percolate half an inch of stormwater runoff from the contributing area in 36 hours (which is consistent with current BOR design requirements). The proposed Pond B-1/Basin B modifications, including the routing of Basin A stormwater to Pond B-1, will not adversely affect the quality of receiving waters in that vicinity such that state water quality standards would be violated. Angler's Green is located in the Southern Water Use Caution Area of Polk County. No surface or groundwater levels or surface water flows have been established for this area under Section 373.042, Florida Statutes. The proposed modifications do not involve any works of the District. The proposed modifications are based on generally accepted engineering and scientific principles and employ treatment methods of effluent filtration which involve commonly accepted designs that can be effectively performed and function as proposed. There are no concerns about Century’s financial, legal, or administrative capability to undertake the proposed modifications as specified in the permit, if issued. There are no applicable special basin or geographic area criteria established for this area. Environmental Concerns As with its review of the proposed permit modification for water quantity impacts, the District's review of environmental concerns was limited to review of impacts from the proposed modifications to the original permitted design; unmodified portions of the original permit were not reviewed for compliance with current requirements. An approximately 20 square-foot permanent impact is proposed to Lake E due to the placement of the control structure (SW-1) in the water. A 379 square-foot temporary impact is proposed to Lake E due to the placement of a cofferdam to facilitate construction of the control structure. Temporary impacts to Lake E resulting from the construction of the control structure would be addressed through the use of sediment and erosion controls to prevent possible sedimentation and turbidity that may arise during the construction activity. The placement of a control structure in Lake E would create very minor permanent impacts resulting from the loss of the footprint of the control structure. These impacts would be insignificant. Due to the very minor nature of these proposed impacts, no mitigation would be required, and no loss of wetlands would be required to be recorded on the Wetlands/Surface Water Table. Construction of SW-1 would not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources of the District. No secondary impacts would be expected from construction of SW-1. No unacceptable cumulative impacts upon wetlands and other surface waters would be expected to occur as a result of construction of SW-1. The project area includes .71 acre of herbaceous/forested wetlands (WL-1) in the northwest corner. The potential for secondary impacts is addressed by an existing fence surrounding WL-1, which eliminates concerns for secondary impacts to this wetland area. No adverse impacts would be anticipated to occur to these wetlands, and no adverse secondary impacts to the water resources would be expected to occur as a result of the proposed modifications themselves. The proposed modifications would not cause unacceptable cumulative impacts to wetlands and other surface waters. Class II or Class III waters would not be affected by the proposed modification project. Therefore, Rule 40D- 4.302(1)(c) is not applicable. No seawalls, lagoons or estuaries are involved in this project. Therefore, Rule 40D-4.302(d) is not applicable. The proposed modifications would not be contrary to the public interest. Relocation of a control structure and enhancement of the Basin B portion of the system would create no significant change in impacts. The proposed modifications constitute a slight improvement over water quality from the original permitted design. No threatened or endangered species were identified for Angler’s Green. The proposed relocation and construction of the Lake E control structure, preservation of onsite wetlands in the northwest corner, and re-design of Pond B-1 present no environmental concerns. Consequently, the proposed modifications do not create any potential for adverse effects regarding the conservation of fish and wildlife, including endangered or threatened species or their habitats. The proposed modifications do not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. The project area does not involve navigable waters and does not affect the flow of water or cause harmful erosion or shoaling. Hence, Rule 40D-4.302(1)(a)(3) does not apply to this permit modification application. There are no significant historical and archaeological resources involved in this Project. Therefore, Rule 40D-4.302(1)(a)(6) is not applicable to this permit modification application. The proposed modifications would not be contrary to the public interest; they would not adversely affect the public health, safety or welfare or the property of others. No adverse impacts are anticipated to occur as a result of the proposed modifications. The proposed modifications maintain the historic water elevation for Lake E and maintain historic flows for the project area. The modified system should also provide some improvement in water quality.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying Century's permit modification application designated ERP No. 44000227.002. DONE AND ENTERED this 8th day of July, 2002, in Tallahassee, Leon County, Florida. ________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2002. COPIES FURNISHED: Joseph D. Magri, Esquire Merkle & Magri, P.A. 5510 West LaSalle Street Tampa, Florida 33607-1713 Joseph P. Mawhinney, Esquire Clark, Campbell & Mawhinney, P.A. Post Office Box 6559 Lakeland, Florida 33802 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Recommendation Based upon the above findings of fact and conclusions of law it is recommended that the permit requested be issued in accordance with the recommendations and special provisions set forth in the staff report (attached thereto). Respectfully submitted this 3rd day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS 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 3rd day of November, 1975. COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Post Office Box 231 Orlando, Florida 32802 John Wheeler, Esquire Post Office Box V West Palm Beach, Florida
Findings Of Fact The Respondent is a multi-county water management district which was created by Chapter 25270, Laws of Florida, 1949, and which operates pursuant to the provisions of Chapter 373, Florida Statutes. The District is the local sponsor for the federally-authorized "Central and Southern Florida Project for Flood Control" and as such, operates and maintains various water control facilities and impoundments in South Florida, as authorized and constructed by the Federal Government. The jurisdiction of the District encompasses 16 counties in southern and central Florida, from Marion County in the north to Monroe County in the south. Water Conservation Area 2A is one of several water conservation areas within Respondent's jurisdiction and is a part of the federally-authorized Central and Southern Florida Project for Flood Control. On April 13, June 2, August 10, September 26, October 19, and October 20, 1978, the Governing Board of the District held public hearings and workshop meetings to receive comments from the District staff and the general public concerning the proposed "draw down" or alteration of water levels in Water Conservation Area 2A. Notice of the September 26, 1978 public hearing was published in the Florida Administrative Weekly, Volume No. 4, No. 36, on September 8, 1978. By the terms of the notice, the purpose of the September 26th public hearing was: To provide interested citizens with an opportunity to express their opinions and hear testimony regarding the District's proposal to lower the water level in Conservation Area 2A, located in western Palm Beach and Broward counties. The purpose of the draw down is to con- solidate the bottom sediments so that a more flexible water schedule can be begun to preserve the natural Everglades ecology . . . . After considering information received from staff and the general public, the Governing Board entered its "Order" No. 78-12 dated October 20, 1978 containing findings of fact and conclusions of law. This "order" provided, in pertinent part: That the staff take appropriate measures to accomplish the following: A draw down from current high water levels will be initiated October 31, 1978, with the goal of reducing water levels in the central portion of the marsh to ground level by December 31 (about 11.2 feet msl). From this point, water levels shall be allowed to continue to recede to a minimum level of 9.5' by the end of May, 1979. Water levels will be allowed to rise to about 12.5' msl by October 31, 1979. That the staff take appropriate measures to regulate water levels in Conservation Area 2A between 12.5' and 9.5' msl as provided in Paragraph 1. until November of 1981. That the regulation of Conservation Area 2A be carried out in a flexible manner to insure maximum environmental benefits and that adjustments in water level fluctuations and stages may be made predicated upon the environmental response of the Conservation Area 2A ecosystem resulting from the previous year's hydroperiod. That the staff pursue such research and data collection as is necessary to fully document the conditions of the marsh throughout the three year duration of the project. No formal hearings pursuant to Section 120.57(1), Florida Statutes, were requested as a result of the aforementioned workshop, public hearings or agency action embodied in the "order" of October 20, 1978. It is undisputed that Respondent did not comply with the requirements of Section 120.54, Florida Statutes, relating to rule making in issuing its Order of October 20, 1978. Petitioner, Joe Burgess, is the owner of Hinckle's Bait and Tackle Shop on State Road 84 in Broward County, approximately 12 miles from Conservation Area 2A. Petitioner Burgess derives approximately 60 to 70 percent of his business from customers who use Conservation Area 2A for hunting, fishing, and other recreational purposes. In addition, Petitioner Burgess personally uses Conservation Area 2A for hunting and fishing. Petitioner, Keith Finlayson, is an environmentalist who uses Conservation Area 2A for recreational purposes, including fishing, bird watching, observing animals in their natural habitats and flora identification. Petitioner Finalyson uses Conservation Area 2A for recreational purposes approximately two to three times per week. Petitioner, Concerned Citizens for the Everglades, Inc., is a not-for- profit Florida corporation, some of whose members presently use Conservation Area 2A for hunting, fishing, and other recreational purposes. Other members of the organization derive their living from businesses supported by revenues obtained from the general public directly attributable to "use" of Conservation Area 2A. One of the effects of the "draw down" will be to make certain portions of Conservation Area 2A inaccessible by boat during some periods of the year, thereby curtailing recreational and other use of the those areas. Water Conservation Area 2A, and other such areas within the jurisdiction of Respondent, is surrounded by levies and various water control structures and is operated independently of other water conservation areas, which are also surrounded by levies and water control structures. All of the water conservation areas within Respondent's jurisdiction are subject to different and independent water regulation schedules. The evidence establishes that it is not feasible to apply the same regulation schedule to all water conservation areas due to differences in topography. In fact, it is anticipated that a different regulation schedule for Water Conservation Area 2A will be developed after the current three-year draw down period is concluded. Although originally scheduled to commence on November 1, 1978, the "draw down" of water levels in Conservation Area 2A was delayed as a result of legal actions taken in state courts. As a result, the District did not actually begin the "draw down" until August, 1980.
