Findings Of Fact Background In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), an intervenor in this case, filed a petition toe initiate rulemaking for single source reclassification of groundwater under the existing provisions of Rule 17-3.403, Florida Administrative Code (F.A.C.). In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties classified Class G-I groundwater, and to thereby provide them the most stringent water quality protection accorded groundwaters of the state. At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed the Department of Environmental Regulation (Department) to review the existing G-I rule, prepare proposed revisions, and present its recommendations to the ERC. Following the ERC directive, the Department held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared the proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17- 4.245, F.A.C., at issue in these proceedings. On October 31, 1986, the Department duly noticed the proposed rules in volume 12, number 44, of the Florida Administrative Weekly. The notice interested parties that a public hearing would be held on December 16, 1986, before the ERC. 1/ On December 16-17, 1986, the ERC held a public hearing at which time it considered the rules recommended by the Department. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in volume 13, number 3, of the Florida Administrative Weekly on January 16, 1987. Petitioners and Intervenors Petitioners, Adam Smith Enterprises, Inc., and Alliance for Rational Groundwater Rules (Case No. 86-4492RP), and Petitioners Aloha Utilities, Inc.; Interphase, Inc.; Phase 1 Homes, Inc.; A.C. & R., Inc.; Tahitian Development, Inc.; Great Cypress Mobile Village, Inc.; and Barrington, Ltd. (Case No. 86- 4705R), filed timely petitions to challenge the validity of the proposed rules, which petitions were consolidated for hearing. Petitions for leave to intervene were granted on behalf of Florida Electric Power Coordinating Group, Inc.; Florida Land Council, Inc.; and Pasco County. These Intervenors' interests were aligned with those of petitioners. Petitions for leave to intervene were a1so granted on behalf of West Coast Regional Water Supply Authority and Concerned Citizens of Citrus County, Inc. These Intervenors' interests were aligned with those of the Department and the ERC. Petitioner, Adam Smith Enterprises, Inc. (Adam Smith), is the owner/developer of a 3,800-acre development of regional impact (DRI) to be known as Trinity Communities. This development, which has been in the acquisition and planning stages for almost 5 years, is currently undergoing DRI review and Adam Smith anticipates that it will receive its development order by September 1987. The Trinity Communities development is located predominately in Pasco County, with just over 250 acres of its lands located in Pinellas County. These properties are predominately open pasture land, and are bordered on the north, east and west by roads and on the south by Hillsborough and Pinellas Counties. As proposed, the Trinity Communities development will include 1100 acres of parks, golf courses, and other open areas. The remaining lands will be developed to accommodate 9500 dwelling units, as well as industrial and commercial uses to service the community, over a 20-year period. At today's market value, the property represents an investment of approximately 28 million dollars. Abutting the Trinity Communities development is the Eldridge-Wilde Well Field. This well field is covered by consumptive use permits issued by the Southwest Florida Water Management District (SWFWMD), and contains major public community drinking water supply wells as defined by the rules at issue in this proceeding. Of these wells, 5 are located within 9.63 feet and 181.5 feet of the proposed development's property line, and 5 are located with 204.72 fee and 297.5 feet of its property line. Petitioner, Alliance for Rational Groundwater Rules (Alliance), is an association of landowners who united to educate themselves about the proposed rules. The proof failed, however, to establish whether Alliance had ever elected any officers or directors, or the magnitude of its membership. Consequently, the proof failed to establish that a substantial number of its members, although not necessarily a majority, were substantially affected by the proposed rules, and that the relief requested by it was of a type appropriate for it to receive on behalf of its members. Petitioner, Aloha Utilities, Inc. (Aloha Utilities), is a utility certified by the Florida Public Service Commission to provide water and sewer service to two separate service areas in southern Pasco County. Currently, Aloha Utilities operates an 850,000 gallon per day (gpd) sewage treatment facility (Aloha Gardens) and a 1.2 million gpd sewage treatment plant (Seven Springs). It also operates 10-11 producing wells, at least 7 of which are permitted by SWFWMD to withdraw at least 100,000 gpd. One of these wells is located approximately 1/4-1/2 mile from an Aloha Utility sewage treatment plant. At least 3 of Aloha Utilities' wells which are permitted to withdraw 100,000 gpd or more, will service or are servicing the Riverside projects and Aloha Gardens Unit Number 12 project discussed infra. Consequently, the proof establishes that Aloha Utilities operates a major public community drinking water supply system as defined by the subject rules. The Aloha Gardens facility is under a Department order to expand its effluent disposal capacity. To satisfy the Department's order and the need for increased disposal capacity, Aloha Utilities commenced condemnation proceedings 8-12 months ago to secure the needed property. While the condemnation proceeding is not yet completed, Aloha Utilities has already expended considerable sums for engineering studies and attorney's fees in its efforts to acquire the property. That property is located approximately 1/2 mile from an existing well that is permitted for an average daily flow of at least 100,000 gpd. The effluent disposal capacity of the Seven Springs facility is also being expanded to meet existing and future demand. In April 1987, Aloha Utilities acquired a 27-28 acre parcel of land immediately adjacent to its existing facility. Upon these lands, Aloha Utilities proposes to construct percolation ponds, a rapid rate land application effluent disposal process. As sited, these ponds would be located 1/2 to 3/4 of a mile from a well permitted for an average daily flow of 100,000 gallons or more. 2/ Petitioners, Interphase, Inc., Phase 1 Homes, Inc., and Tahitian Development, Inc., are corporations with common management which are developing three separate but geographically proximate projects in Pasco County. These projects will be, or are, serviced by Aloha Utilities. Interphase, Inc., is the owner/developer of a 100- acre tract known as Riverside Village Unit Number Four. This property is currently being developed to include 57 acres dedicated to single family use and 43 acres dedicated to multifamily use, and will require the installation of stormwater facilities and underground sewage transportation facilities. Two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more are located 1/2 mile and 1/3 mile, respectively, from this development. Interphase, Inc., is also the owner of a 17-acre parcel of vacant land in Pasco County that is zoned commercial. This property is located within 400 feet of Aloha Utilities' Seven Springs sewer treatment plant, and its development will require the installation of underground sewage transportation facilities. Phase 1 Homes, Inc., is the owner/developer of a project known as Riverside Village Townhouses. This project is fully developed and is currently serviced by Aloha Utilities. Located within 1/2 mile of the development are two wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development, Inc., is the owner/developer of a 40-acre tract known as Riverside Villas. Twenty of these acres have been developed and some of the units sold. The remaining 20 acres are currently under development. In developing its remaining 20 acres, Tahitian Development would be required to install stormwater drainage systems and sewage transportation lines to connect with Aloha Utilities. Located within 1/2 mile of the development are wells of Aloha Utilities that are permitted for an average daily flow of 100,000 gallons or more. Tahitian Development also owns a 40-acre parcel in Orange County which it plans to develop for light industrial uses such as an industrial park or an office complex. Such development would result in at least a 40 percent impervious surface, including building tops, within that 40-acre parcel, and require the installation of a sewage transportation system and a stormwater drainage system. Petitioner, A.C. & R., Inc., is the owner/developer of a project in Pasco County known as Aloha Gardens Unit Number 12. The project, which currently is represented by 40-50 developed lots, is located just north of the Aloha Gardens sewage treatment facility, and is serviced by Aloha Utilities. Located within 1/2 mile of the development that is permitted for an average daily flow of 100,000 gallons or more. Petitioner, Great Cypress Mobile Village, Inc., is the owner/developer of a 149 unit mobile home park in Pasco County. Twenty of these units are completed and ready for occupancy. Completion of the project will require the installation of additional sewer lines. Located at the interior of the property is a sewage treatment plant owned by Northern Utilities which services the project, and within 600 feet of the project's boundary there is a well which services that utility. The capacity of that well was not, however, demonstrated in these proceedings, nor was it shown whether such well was part of a community water system. Petitioner, Barrington, Ltd. is a party of unknown capacity, origin, or interest. No evidence was presented on its behalf to demonstrate that its substantial interests would be affected by the proposed rules. Intervenor, Florida Electric Power Coordinating Group, Inc. (FCG), a Florida corporation, is an association of Florida's electric utilities, and is composed of 37 members. The FCG has, as part of its internal organization, an environmental committee whose purpose is to participate in regulatory development and provide mutual member assistance with regard to water related matters. This committee was authorized by the FCG executive committee to participate in the development of the rules at issue in these proceedings, as well as Intervene in these proceedings, to represent and protect the interests of FCG members. The FCG participated in the development of the subject rules by the Department, and was granted full party status by the ERC during that rulemaking process. The members of FCG are owners and operators of electric power generating facilities. These facilities“ include the power plant and ancillary facilities such as substations. Incident to the operation of these facilities are wastewater discharges associated with the production of electricity and stormwater discharges. One of these facilities, Gainesville Regional Utilities' Deer Haven generating station is located across Highway 441 from a major community drinking water supply well. Intervenor, Florida Land Council, Inc., a Florid corporation, is composed of 12 primary members who own large tracts of land in interior Florida, and who are engaged primarily in agribusiness. The Land Council's purpose is to protect the asset value of its members property and, because of that purpose, it is concerned with environmental regulations, growth management regulations, land use regulations, and comprehensive planning. To protect its interests, the Land Council sought leave to intervene in these proceedings. There was, however, no proof that any lands owned by any member of the Land Council were proximate to any major public community drinking water well. Intervenor, Pasco County, is the owner/operator of 25 wastewater treatment plants with capacities In excess of 100,000 gallons per day, and has under construction, or in the design stage, additional facilities with capacities in excess of 100,000 gallons per day. The construction of these new facilities will require the installation of new lines for the collection of wastewater. Pasco County's current, as well as its planned, wastewater treatment facilities will utilities a rapid rate land application effluent disposal process. Within a mile of any wastewater treatment plan operated by Pasco County can be found a major public community drinking water well as defined by the rules at issue in these proceedings. Pasco County also owns and operates wells within the county with permitted withdrawal rates exceeding 100,000 gpd, and participates in the ownership and management of their wells with permitted withdrawal rates exceeding 100,000 gpd through West Coast Regional Water Supply Authority. Pasco County currently has plans to add new production wells in the county with an average daily pumpage in excess of 100,000 gallons per day. Intervenor, West Coast Regional Water Supply Authority (West Coast), is an interlocal government body created in 1974 to develop, store, and supply water to its member governments so that all citizens within the areas served by the authority may be assured an adequate supply of water. Member governments served by WCRWSA are Hillsborough County, Pasco County, and the cities of St. Petersburg and Tampa. Wellfields operated by West Coast are the Starkey Wellfield located in west central Pasco County, which serves the citizens of New Port Richey and Pasco County; the South-Central Hillsborough Regional Wellfield located in south-central Hillsborough County, which serves the citizens of Hillsborough, County; the crossbar Ranch Wellfield located in north-central Pasco County, which principally serves the citizens of Pinellas, County; the Cypress Creek Wellfild located in south-central Pasco County, which serves the citizens of Hillsborough, Pinellas, and western Pasco Counties and the City of St. Petersburg; the Northwest Hillsborough Wellfield located in northwest Hillsborough County, which serves the citizens of Hillsborough County; the Section 21 Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg; and, the Come-Odessa Wellfield located in northwest Hillsborough County, which serves the citizens of the City of St. Petersburg. 3/ Each of the wellfields operated by West Coast are public community water systems, and contain wells permitted to withdraw in excess of 100,000 gallons per day. Collectively, these wellfields serve a total population of 800,000 persons. Intervenor, Concerned Citizens of Citrus County, Inc. (Concerned Citizens), is a not-for-profit corporation, was chartered in 1981, and has 350 members who obtain their drinking water from operational community water supply wells permitted for over 100,000 gallons per day in Inverness, Crystal River, Floral City, Sugar Mill Woods, Beverly Hills, and Rolling Oaks, Citrus County, Florida. The purpose of Concerned Citizens is to protect the natural resources of Citrus County through planning and zoning regulations, and local and state legislation and regulations. It was granted party status by the ERC. General aspects of the proposed rules The proposed rules establish new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the existing rule, the ERC could reclassify an aquifer or portion of an aquifer as G-I within specified boundaries upon a finding that: The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and The designated use is attainable, upon consideration of environmental, techological, water quality, institutional, and social and economic factors. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was: ...within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifer... and, upon consideration of: ...environmental, technologial, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. As with thee existing rule, the proposed rules require that rulemaking procedures be followed to actually designate a G-I aquifer or aquifer segment at any particular location. The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells", community water systems that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater, by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing waters from unconfined aquifers (an aquifer exposed to the atmosphere) or leaky confined aquifers (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology, of 5 years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharge to groundwater would be prohibited or restricted. A major emphasis of the proposed rules is to restrict discharges to groundwater within the zones of protection. For example, the rules eliminate the zone of discharge within the zones of protection, and require that new discharges to groundwater of treated domestic effluent meet the groundwater criteria specified in rule 17-3.404, F.A.C., prior to discharge. 4/ Additionally, such wastewater treatment facilities would be required to pre-treat industrial wastewater, provide daily monitoring to insure proper treatment plant process control, and provide 24 hour a day attendance of a wastewater operator under the general supervision of a Class A certified wastewater operator. New underground lines for the transport of domestic raw wastewater would be required to be constructed so that no more than 50 gallons per inch of pipe diameter per mile per day could leak into the ground. Within the 5 year zone of protection, there are no restrictions on stormwater discharges for residential developments. However, discharges from new stormwater facilities serving an area forty acres or larger with a forty percent impervious surface, excluding building tops, are required to monitor the discharge. Construction and operation of new sanitary landfills would be prohibited. As previously noted, to be eligible for reclassification as a G-I aquifer, the aquifer or aquifer segment under consideration must be leaky confined or unconfined. Whether the aquifer is leaky confined or not will be determined through application of the "Vv" and "Tv" formulae contained in the proposed rules, and the zones of protection will be established by reference to the "r" formula contained in the proposed rule. To date, neither the Department nor any party has applied the "Vv" and "Tv" formulae to identify wells hat are withdrawing from unconfined or leaky confined aquifers, nor has anyone delineated any zones of protection by application of the "r" formula. The Department has, however, identified those areas of the state at which it is likely that major community drinking water supply wells are withdrawing from such aquifers. Based on this identification, the Department has contracted with the U.S. Geological Survey (USGS) to "map" the Middle-Gulf region (Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties) by applying the "Vv" and "Tv" formulas to each well permitted to withdraw 100,000 gpd or more to determine if it is withdrawing from such aquifers and, if so, to delineate proposed zones of protection around such wells or wellfields through application of the "r" formula. The USGS is currently mapping the Middle-Gulf region. Pertinent to this case, the Department has identified all of Pasco and Pinellas Counties, the northern half of Hillsborough County, and most of Orange County including Orlando, as areas within which wells are most probably withdrawing from unconfined or leaky confined aquifers, and for which aquifers the Department will seek G-I reclassification. Under the circumstances, the parties have established, except as heretofore noted, that there is a reasonable likelihood that the proposed rules will substantially affect their interests. The rule challenge The gravamen of the protestant's challenge is that certain definitions and formulae continued within the proposed rule are vague, ambiguous, or not supported by fact or logic. The Protestants' also challenge the adequacy of the economic impact statement. The Protestants concerns are addressed below. Definitions Rule 17-3.021, as amended, would define "Confined Aquifer", "Leaky Confined Aquifer", and "Unconfined Aquifer", as follows: (7) "Confined Aquifer" shall mean an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself. For the purpose of G-I, it shall mean an aquifer confined from above by a formation(s) which restricts the movement of groundwater vertically from the water table to the top of the confined aquifer for a period of more than five years * * * (16) "Leaky Confined Aquifer" shall mean, for the purposes of G-I, an aquifer confined from above by a formation(s) which allows groundwater to move vertically from the water table to the top of the leaky confined aquifer in five years or less. * * * (34) "Unconfined Aquifer" shall mean an aquifer other than a confined aquifer. For the purpose of G-I it shall mean an aquifer other than a confined or leaky confined aquifer. 5/ Protestants contend that the definition of "confined aquifer" and "leaky confined aquifer" are vague and meaningless because they are "defined by use of the phrase being defined". Accordingly, they conclude that proposed rule 17-3.021(7) and (16) must fall because they are without thought and reason, irrational and vague. Protestants further contend that since the definitions of "confined aquifer" and "leaky confined aquifer" are flawed, proposed rule 17-3.021(34), which defines unconfined aquifer, must also fall. The Protestants' contentions are not persuasive. If one were restricted to the definition of "confined", "leaky confined" and "unconfined" aquifer to glean their meaning, the rules might be considered vague. However, these definitions are, as they specifically provide, "for the purpose of G-I" and they must be read in context with the balance of the rule. When so read, it is apparent that "top of the confined aquifer" or "top of the leaky confined aquifer" is the top of the aquifer that has been calculated as confined or leaky through manipulation of the "Vv" and "Tv" formulae. Under the circumstances, the subject definitions are not vague, arbitrary or capricious. Proposed rule 17-3.021(20) provides: "New Discharge" shall mean, for the purpose of G-I, a discharge from a new installation; or a discharge from an existing permitted installation that has been altered, after the effective date of G-I reclassification, either chemically, biologically, or physically or that has a 211 22 different point of discharge, and which causes a significantly different impact on groundwater. Protestants contend that the definition of "new discharge" is vague, arbitrary and capricious because existing installations would be classified as new dischargers, and subject to the more stringent requirements of the proposed rules, whether the alteration of their discharge significantly improved or adversely affected groundwater. As proposed, the rule would so define new discharge, and it is not vague or ambiguous. The proof demonstrated, however, that the Department only proposed to define, as new dischargers, those existing installations whose altered discharge caused a significantly different negative impact on groundwater. The Department conceded this point, and offered no proof to demonstrate the reasonableness of classifying existing installations that improve their discharge as new discharges. Under the circumstances, proposed rule 17-3.021(20) is arbitrary and capricious. Proposed rule 17-3.021(35) defines "underground storage facility or underground transportation facility as follows: "Underground storage facility" or "underground transportation facility" shall mean that 10 percent or more of the facility is buried below the ground surface. This proposed rule is, however, only pertinent to proposed rule 17-4.245, which addresses the permitting and monitoring requirements for installations discharging to groundwater. Pertinent to this case, proposed rules 17-4.245(3)(c) and (d) establish construction requirements for the following facilities within the five year zone of protection: Underground storage facilities. An underground storage facility includes any enclosed structure, container, tank or other enclosed stationary devices used for storage or containment of pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Sect ion 403.031(1), F.S. Nothing in this paragraph is intended to include septic tanks, enclosed transformers or other similarly enclosed underground facilities.... Underground facilities for transportation of wastewater or pollutants as defined in Section 376.301(12), F.S. or any contaminant as defined in Section 403.031(1), F.S. excluding natural and liquified petroleum gas. Underground facilities for transportation of waste effluent or pollutants or contaminants include piping, sewer lines, and ducts or other conveyances to transport pollutants as defined in Section 376.301(12), F.S., and contaminants as defined in Section 403.031(1), F.S.... Protestants contend that the proposed rules are contained in two separate chapters of the Florida Administrative Code with no bridge between them. Under such circumstances, they contend the rules fail to adequately define either facility in either chapter, and that the rules are therefore vague, arbitrary and capricious. Protestants' contention is not persuasive. Proposed rule 17-3.021(35) defines "underground storage facility" or "underground transportation facility" as meaning that 10 percent or more of the facility is buried below the ground surface. Proposed rules 17-4.245(3)(c) and (d) address what type of facility is included within the terms "underground storage facility" and "underground transportation facility." Notably, Rule 17-4.021, F.A.C., provides: Definitions contained in other chapters of the Department's rules may be utilized to clarify the meaning of terms used herein unless such terms are defined in Section 17-4.020, F.A.C., or transfer of such definition would defeat the purpose or alter the intended effect of the provisions of this chapter. Under the circumstances of this case, the rules are appropriately read together. So read, the construction requirements for "underground storage facilities" and "underground transportation facilities", as required by proposed rule 17-4.245(3)(c) and (d), are applicable if 10 percent or more of the containment device used for the storage or transport of pollutants is buried below the ground surface, and the proposed rules are not vague, arbitrary or capricious. Proposed rule 17-3.021(39) defines "Zones of Protection" as follows: "Zones of Protection" shall mean two concentric areas around a major public community drinking water supply well(s) or wellfield(s) drawing from a G-I aquifer whose boundaries are determined based on radii from the well or wellfields of 200 feet and five years groundwater travel time respectively. Protestants contend that the definition of "Zones of Protection" is vague, arbitrary and capricious because nowhere within the proposed rules is "G-I aquifer" defined. protestants' contention is not persuasive. Proposed rules 17-3.403(1) and (7) adequately explain what is meant by "G-I aquifer", and proposed rule 17-3.403(8) sets forth the metodology for calculating the zones of protection. The definition of "Zones of Protection", set forth in proposed rule 17-3.02(39) is not vague, arbitrary or capricious, because of any failure to define "G-I aquifer." Mapping Priorities When considering whether to reclassify an aquifer or aquifer segment as G-I, proposed rule 17-3.403(5)(e)2 requires that the aquifer or aquifer segment: Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones of protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. The mapping priority directive referred to in purposed Rule 17-3.403(5)(e)2a, was an oral directive of the ERC that Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties, referred to as the Middle-Gulf region, be mapped first. That directive has not been reduced to writing and, consequently, a copy thereof has never been available for inspection. Categories of G-I Aquifers and determination of zones and protection Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed rule 17- 3.403 (7) provides: Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met: That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or from leaky confined aquifers.... (b)(. reserved.) Proposed rule 17-3.403(8) provides: Determination of the boundaries of the zones of protection. (a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: percent.x4n where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. Protestants contend that the foregoing provisions of the proposed rules are vague, arbitrary and capricious because the wells that would be subject to and around which a zone of protection would be established cannot be identified or, if identifiable, do not comport with the Department's intent or interpretation. Protestant's concerns are not without merit. To be eligible for consideration as a G-I aquifer, proposed rule 17-3.403(7) requires that the aquifer segment be within the zones of protection of a "major public community drinking water supply well(s) or wellfield(s). Proposed rule 17- 3.021(17) provides that "major public community drinking water supply" shall mean: those community water systems as defined in Section 17-22.103(5), F.A.C., that are permitted by consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater. Community water system" is defined by Section 17-22.103(5) as: a public water system which serves at least IS service connections used by year- round residents or regularly serves at least 25 year-round residents. Facially then, the proposed G-I rules are applicable to "community water system" that hold a consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater", and which are withdrawing from unconfined or leaky confined aquifers. Notably, the rule does not ascribe the 100,000 gpd permitted rate of withdrawal to each well, but to a permit held by a community water system. Accordingly, under the literal reading of the proposed rules, each well covered by the consumptive use permit would be subject to a zone of protection regardless of its individually permitted rate, so long as it was withdrawing from an unconfined or leaky confined aquifer. While there may be legitimate reasons to designate zones of protection around wells, regardless of their individual permitted rate when the community water system holds a consumptive use permit to withdraw groundwater at a 100,000 gpd average, the Department advanced none. To the contrary, the Department contended that zones of protection were only to be established around a well that was permitted to withdraw an average daily amount of 100,000 gallons or greater. Under the circumstances, the provisions of proposed rules 17-3.403(7) and (8) are arbitrary and capricious. 6/ The "Vv" and "Tv" formulae Proposed rule 17-3.403(7)(a) prescribes the methodology where by vertical travel time will be calculated, and therefore whether a particular aquifer will be classified as confined or leaky confined. To this end, the proposed rule provides: ... Determination of vertical travel time for leaky confinement will be by application of the following formulae: Vv= Kv h/nl where: Vv= vertical velocity (feet/day). Kv= vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day). h= head difference between water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet). n = effective porosities of the surficial aquifer and underlying confining bed materials. 1 = distance from the water table to the top of the producing aquifer (feet). Tv= 1/Vv 365 where: Tv= vertical travel time (years). 1 = same as above. Vv= same as above. The "Vv" formula and the "Tv" formula are valid formulae, and are commonly used by hydrogeologists to calculate the vertical velocity and vertical travel time of groundwater. As proposed, the formulae present a reasonable methodology for computing the vertical velocity and vertical travel time of groundwater if the well is producing from one aquifer. The formulae cannot, however, as hereafter discussed, be reasonably applied if tee well is producing from multiple aquifers or if another aquifer intervenes between the surf aquifer and the producing aquifer. While not the most prevalent occurrence in the state wells in the Middle-Gulf regions often do penetrate more than one aquifer and do produce water from more than one aquifer. The rule defines the "Kv" element of the "Vv" formula as the "vertical hydraulic conductivities of the surficial aquifer and underlying confining bed materials (feet/day)." This is a reasonable definition and will produce a scientifically valid result provided the well does not penetrate multiple aquifers. Should the well penetrate multiple aquifers, the values derived for vertical velocity ("Vv") and vertical travel time ("Tv") will not be accurate since the hydraulic conductivities of the intervening aquifers are not, by the rule definition, factored into the calculation of "Kv". Under such circumstances, whether an aquifer was classified as confined or leaky confined would not be determined by a valid "Kv" but, rather, by chance. Protestants also contend that the rule is vague, arbitrary and capricious because it does not specify the methodology by which "Kv" is to be calculated. There are, however, methodologies commonly accepted by hydrogeologists to derive a scientifically valid "Kv", whether the well penetrates one or more than one aquifer. The infirmity of the rule is not its failure to specify a methodology, but its to include data necessary to produce a meaningful result. The rule defines the "n" element of the Vv formula as "effective porosities of the surficial aquifer and underlying confining bed materials." This is a reasonable definition and will, though the application of commonly accepted methodologies, produce a scientifically valid result. 7/ The rule defines the element "Delta h" in the Vv formula as the "head difference between the water table in the surficial aquifer and the potentiometric surface of the producing aquifer (feet)", and defines the element "1" as the "distance from the water table to the top of the producing aquifer (feet)." These elements are utilized in the formula to calculate a gradient, and must be measured using the same points of reference to yield a meaningful result. To this end, the proof demonstrates that the definitions are reasonable since they utilize the same points of reference, and that when applied in accordance with accepted hydrogeologic practice will produce a scientifically valid gradient. (See Department exhibit 7). Protestants contend, however, that the definitions of "Delta h" and "1" are vague, arbitrary and capricious because they do not specify when the measurements should be made, do not define "producing aquifer", and do not define "top" of the producing aquifer. For the reasons that follow, Protestants' contentions are found to be without merit. While a water table is a dynamic surface subject to frequent, if not daily fluctuation, resulting from variations in rainfall and the demands of man, and while a potentiometric surface is likewise a dynamic elevation that changes with time and season, protestants failed to demonstrate that there was any particular date or dates that would be most appropriate to make such calculations. Rather, protestants contended that unless such measurements were taken contemporaneously, any derivation of "Delta h" and "1" would not be reliable. While such might be the case, the rule does not mandate a divergence from the accepted hydrogeologic practice of taking such measurements contemporaneously. While the rule does not define "producing aquifer," it is an accepted hydrogeologic term and not subject to confusion. The only confusion in this case was the introduction of the issue of multiple producing aquifers and protestants' contentions that this rendered the Vv formula vague, arbitrary and capricious since it did not factor in such a consideration. Protestants' contention does not, however render the term "producing aquifer" vague. The sole purpose of the Vv and Tv formulas are to determine whether the aquifer from which water is being produced is leaky confined. To establish this, the formulae are applied to calculate whether the vertical travel time is five years or less. If a well is withdrawing water from more than one aquifer it may be necessary to calculate Vv and Tv for each aquifer to discern which of those aquifers are within the 5 year vertical travel time threshold, and therefore subject to G-I reclassification. To this end the rule is not vague, and would adequately address the multiple producing aquifer scenario. While the rule doe not define "top" of the producing aquifer, this term is an accepted hydrogeologic term and is not subject to confusion. In application there may, however, be disagreements among hydrogeologists as to where this line should be established because geologic boundaries are fine gradations, and not sharp lines which would lend themselves to the designation of precise points of reference. This is not, however, a failure of the rule, but a peculiarity of nature, and is subject to scientific proof. Notably, protestants did not demonstrate that "top" of the producing aquifer could be defined with reference to a fixed point. Under the circumstances, "top" of the producing aquifer is a reasonable reference point. Zones of Protection Proposed rule 17-3.408 provides: Determination of the boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping), measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula: QT 2 3.14 hn where Q = permitted average daily flow from the well (measured in cubic feet per day); T = five years (1825 days); 3.14 = mathematical constant pi; r = radius (feet); h distance from the top of the producing aquifer to the bottom of the hole (feet); n effective porosity. For the purpose of this calculation the following effective porosities for representative Florida aquifers will be used: Floridan .05 Sand and Gravel .2 Biscayne .15 Surficial .2 The Department shall use more site-specific values for "Q", "n", or "h" when available for designation of the zones of protection by the Commission. Proposed rule 17-3.403(8)(a) provides that the inner zone of protection shall be based on a radius from the wellhead or wellfilled, as appropriate, of 200 feet. While denoted as an arbitrary radius, the 200 foot radius was not derived without fact or reason. Rather, it was a result reached at the workshops after consideration of existing regulations that establish buffer zones of 200-500 feet between a public water supply and a pollution source. Conceptually, the 200 foot zone was adopted because it is so small and so close to the well that it essentially constituted a zone of protection of the well head by preventing contaminants from moving into the well opening directly or the annular space around the well casing. Accordingly, the 200 foot zone has a reasonable basis. Its actual delineation is, however, as flawed as that of the five year zone discussed infra. The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The basis for the "r" formula is the formula used to calculate the volume of a cylinder. That formula, V = pi r2 h, yields a simple volumetric measurement without any consideration of velocity. By the introduction of the element "n" (effective porosity), the "r" formula introduces a velocity component which would, properly applied, produce a radius equal to the distance groundwater would flow in 5 years. 8/ As proposed, however, the rule would establish a meaningless line around a well. Under the proposed rule, the Department would calculate "r" based on specified effective porosities ("n") for the Floridan, Biscayne, sand and gravel, and surficial aquifers absent site specific data. The Department is, however, under no requirement to generate site specific data, and currently is mapping the Middle-Gulf region based on the values established by the rule. Absent chance, the areas mapped will bear no relationship to groundwater travel time. The lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. By assuming "n", the "r" formula ignores the varied lithology, and produces a radius that would seldom, if ever, represent the actual rate at which groundwater moved toward any well. 9/ The zone thus circumscribed is an illusion since the groundwaters and contaminants within it may move at a rate significantly greater than or less than 5 years travel time. Notably, the Department has conducted no study or test to validate its proposed methodology. The element "Q" in the "r" formula is defined as the "permitted average daily flow from the well (measured in cubic feet per day)." Protestants contend that such definition is vague, arbitrary and capricious because the Department proposes to rely on consumptive use permits issued by the various water management districts to derive "Q", and such permits would not necessarily provide the requisite data. While the proof demonstrates that "Q" cannot always be derived by reference to a consumptive use permit, this does not render the definition of "Q" vague, arbitrary, or capricious. Rather, "Q" is a factual matter, and subject to a factual derivation through reference to consumptive use permits and other site specific data. The element "T" in the "r" formula is defined as "five years (1825) days." By its inclusion, the Department proposes to circumscribe the outer zone of protection at five years groundwater travel time. The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within an area proximate to a public water supply for public health and safety concerns. The five year standard, which is found throughout the rules, was based on the theory that if a contaminant was introduced to groundwater a period of time should be allowed to discover the contamination and remove it or make provision for an alternate water supply before the contaminant reached the public water supply. The five years proposed by the rule was not, however, founded on fact or reason. During the workshops that under scored the proposed rule, the time factor was the subject of considerable discussion and ranged from less than two years to greater than ten years. Based on its own in-house search, the Department initially proposed a 10-year standard. That search revealed that it took 10 to 15 years between the time a contaminant was discovered and cleanup could commence, and between seven and eight years between the time a contaminant was introduced into groundwater and it discovery. Notwithstanding the results of its own in-house search, the Department, in the face of debate, elected to "compromise" and propose a five-year standard. Such standard was not the result of any study to assess its validity, and no data, reports or other research were utilized to derive it. In sum, the five- year standard was simply a "compromise", and was not supported by fact or reason. As previously noted, the lithology of an aquifer and the surrounding layers is varied and diverse, and directly affects the direction and velocity of groundwater flow. The effective porosity of those materials in the Floridan aquifer canvary from to .4 at various places. The rule proposes, however, to use an effective porosity for the Floridan aquifer of .05 to establish "r." The value ascribed to "n" is a critical value, as previously discussed in paragraph 65. It also has a profound impact on the aeral extent of the zone of protection. For example, assuming "Q" equals 3 million gallons and "h" equals 600 feet, an "n" of .02 would result in a radius of 4,406 feet or 1,400 acres, an "n" of .03 would result in a radius of 3,578 fee or 934 acres, an "n" of .05 would result in a radius of 2,787 feet or 560 acres, and an "n" of .2 would result in a radius of 1,393 feet or 140 acres. While an effective porosity of 05 for the Floridan aquifer may be a reasonable value at a particular site, it is not a value that can be reasonably ascribed to the Floridan in general. For this reason, and the reasons heretofore set forth, the rule's specification of an effective porosity of .05 for the Floridan aquifer is unreasonable. Proposed rule 17-3.403(8)(a), sets forth the manner in which the zones of protection will be drawn around a well or wellfield. That proposed rule provides: For well fields whose individual zones of protection overlap due to clustering, a single zone of protection will be calculated in the following manner: Using the permitted average daily withdrawal rate of the wells with overlapping zones of protection, the area on the surface overlying the aquifer equal to the sum of the areas of the five year zones of protection of the individual wells, shall be used to define the area which encircles the perimeter of the wellfield. In cases where a zone of protection of a single well protrudues beyond the calculated perimeter or when the configuration of the wellfield is irregular, the perimeter will be shaped to accommodate the configuration. The surface are encircling the perimeter of the wellfield shall not exceed the total surface area of the overlapping zones of protection for individual wells. In the case of unclustered wells within a wellfield, individual zones of protection around each well will be calculated. As previously discussed, the proposed G-I rules are facially applicable to "community water systems" that hold a " consumptive use permit to withdraw an average daily amount of 100,000 gallons or greater of groundwater," and which are withdrawing from unconfined or leaky confined aquifers. Under proposed rule 1773.403(8)(a), the five-year zone of protection would be drawn around each of these wells. If the wells are located so close to each other that the five year zones of protection are overlapping (clustered), those wells would be deemed a wellfield by rule definition and a five year zone of protection would be established around it. The proposed rule's description at how to determine and configure a zone of protection around a wellfield is however, vague and ambiguous. While the rule provides that when the configuration of the wellfield is "irregular", the perimeter will be shaped to accommodate the configuration", it sets forth no standard by which the perimeter will be established. Effectively, the rule vests unbridled discretion in the Department to establish the configuration of a wellfield. The Economic Impact Statements Pursuant to the mandate of Section 120.54(2), Florida Statutes, the Department prepared economic impact statements for the proposed revisions to Chapters 17-3 and 17-4, Florida Administrative Code. The economic impact statements were prepared by Dr. Elizabeth Field, the Department's chief economist, an expert in economics. Dr. Field developed the economic impact statements by examining the proposed rules and discussing their potential impact with Department staff. Additionally, Dr. Field attended the public workshops that were held concerning the proposed rules, and solicited input from those participants. The Florida Home Builders Association and the Florida Petroleum Council submitted data for her consideration, but none of the petitioners, although some were represented at such workshops, responded to her requests for information. The economic impact statements prepared by Dr. Field to address the proposed rules conclude that, apart from the cost to the Department for mapping, there are no direct costs or economic benefits occasioned by the rules. Dr. Field's conclusion was premised on the fact that the proposed rules only establish the eligibility criteria for reclassification of an aquifer to G-I and the standards for discharge to that aquifer. Under the proposed rules, further rulemaking would be required to actually designate a specific aquifer as G-I, and delineate a zone of protection. 10/ Pertinent to this case, proposed rule 17-3.403, provides: The intent of establishing G-I eligibility criteria is to determine which aquifer or aquifer segments qualify for potential reclassification to G-I aquifers. Adoption of these criteria does not imply nor does it designate aquifer or aquifer segments as G-I. Such designation can only be achieved through reclassification by the Commission after eligible segments have been mapped by the Department. (6)... the following procedure shall be used to designate Class G-I aquifers: Rulemaking procedures pursuant to Chapter 17-102, F.A.C., shall be followed; Fact-finding workshops shall be held in the affected area; All local, county, or municipal governments, water management districts, state legislators, regional water supply authorities, and regional planning councils whose districts or jurisdictions include all or part of a proposed G-I aquifer shall be notified in writing by the Department at least 60 days prior to the workshop; A prominent public notice shall be placed in an appropriate newspaper(s) of general circulation in the area of the proposed G-I aquifer at least 60 days prior to the workshop. The notice shall contain a geographic location map indicating the area of the zones of protection and a general description of the impact of reclassification on present and future discharges to groundwater. A notice of a G-I workshop shall be published in the Florida Administrative Weekly prior to the workshop(s). At least 180 days prior to the Commission meeting during which a particular zone of protection will be considered for reclassification, the Department will provide notice in the Florida Administrative Weekly and appropriate newspaper(s) of the intended date of the Commission meeting. The Commission may reclassify an aquifer or aquifer segment as a G-I aquifer within specified boundaries upon consideration of environmental, technological, water quality, institutional (including local land use comprehensive plans), public health, public interest, social and economic factors. When considering a reclassification an aquifer or aquifer segment shall: ....(Be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined or from leaky confined aquifers.).... Be specifically mapped and delineated by the Department on a detailed map of a scale which would clearly depict the applicable zones or protection. Maps will be grouped and submitted for reclassification generally on a regional basis. Mapping priorities shall follow the Commission directive of February 27, 1985. The remaining areas of the state will be mapped by the Department as time and resources allow. (Emphasis added). While, if and when applied, the proposed rules would certainly have a direct economic impact as a consequence of a reclassification of an aquifer to G-I and the designation of a zone of protection, as well as the standards for discharge to that aquifer, such costs at this stage are not direct or are not quantifiable. When mapped and the zones of protection identified, a reasonable assessment of the economic cost or benefit of the proposal can be addressed. This is specifically reserved by the Commission whereby its decision to reclassify an aquifer as G-I will, pursuant to proposed rule 17-3.403(6) follow rule making procedures and be based on consideration of economic factors. This result obtains whether the affected party is a small business or some other entity. In reaching the conclusion that the economic costs or benefits of the proposed rules, apart from the cost of mapping, do not at this stage have a direct or quantifiable impact, I have not overlooked the "announcement effect" that is occasioned by the announcement of a governmental agency to regulate an activity. Such announcement certainly has a chilling effect on the community that may reasonably be impacted. The economic impact is, however, speculative or not quantifiable in the instant case. Further, the proof does not demonstrate any incorrectness or unfairness in the proposed adoption of the rules occasioned by the EIS prepared in this case.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue Whether a consumptive use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500112 requested water from three (3) wells for the purpose of industrial use. This application is for a new use. The center of withdrawals will be located at Latitude 27 degrees 38' 58" North, Longitude 81 degrees 48' 21" West, in Hardee County, Florida. The application is for the use of not more than 470 million gallons of water per year and not more than 2,592,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Application received as Exhibit 1. Notice was published in a newspaper of general circulation, to-wit: The Herald Advocate, published weekly in Wauchula, Florida, on August 7 and 14, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The affidavit of publication was received without objection and entered into evidence as Exhibit 2. Letters of objection were received from the following: Mr. Joseph F. Smith, Route 1, Box 238, Wauchula, Florida 33273. Mr. Smith states that in his opinion such withdrawal of water will severely damage his property. He is developing a mobile home park on eight (8) acres and is fearful that the amount of water requested in this application will diminish his supply of water for his project. A letter from Mr. and Mrs. A. H. Van Dyck, written on August 16, 1975, Route 2, Box 657, Wauchula, Florida 33873. They are fearful that the large amount of water American Orange Corporation proposes to pump each day will affect their shallow well which provides water for their home. They would like to see some type of agreement whereby American Orange Corporation would be willing to pay for replacement of the well if the corporation should cause their well to go dry. Mr. Stanley H. Beck, Counselor at Law, wrote a letter in behalf of his client, Harold Beck, requesting information as to the applicable statutes and regulations which affect the matter of the consumptive use permit. A telegram was sent by Harold Beck of Suite 1021, Rivergate Plaza, Miami 33131, stating that he objected to the application of American Orange Corporation's withdrawal of water or the reason that it would reduce the property value. The witness for the permittee is Barbara Boatwright, hydrologist, who was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The staff hydrologist recommended that the permit be granted with two (2) conditions. One was that each of the wells be metered and two, that the District receive monthly reports from each meter. The applicant has consented.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
Findings Of Fact Application No. 76-00450 is for a consumptive use permit from 10 wells located in Hillsborough County, to be used for public water supply for the City of Temple Terrace. The permit seeks to withdraw 2.028 million gallons a day average annual withdrawal and 4.564 million gallons per day maximum daily withdrawal. The sought for withdrawal may affect other wells by drawdown of an average of 1" in a surrounding well. Such a drawdown will not seriously and adversely affect the surrounding wells. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flowmeters of a type acceptable to the district on all withdrawal points covered by the permit. That the applicant shall record the pumpage on a weekly basis and shall submit a record of that pumpage to the district quarterly beginning January 15, 1977. All individual connections supplied by withdrawals permitted will be metered. Records of meter readings will be made available to the district upon request. That the permit shall expire on December 31, 1980.
The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
Findings Of Fact Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this 10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.
